More video surveillance in the workplace. But is it legal?

With more than half (55 percent) of employers surveyed by the American Management Association already using video monitoring, employers should understand the legal limits on video surveillance in the workplace and on workers’ expectations of privacy.

Why Would Employers Record Employees on Video?
A majority of employers (48 percent) rely on video monitoring to counter theft, violence and sabotage, but 7 percent admitted they use video surveillance to gauge workers’ performance. The areas under video surveillance may include areas to which the public has access, but many employers also monitor areas considered sensitive – like areas requiring security clearances, for example. According to the employer survey, more than 75 percent of employers using video surveillance notify employees that they may be captured on video.

Is there a Federal Law Against Video Surveillance in the Workplace?
There is no explicit prohibition or limitation in U.S. federal law against employers monitoring the workplace – except in the case of monitoring workers engaging in protected concerted activity (see below). Although elements of the Federal Wiretapping/Electronic Communications Privacy Act broadly apply to workplace video surveillance, the Act lacks specificity, leaving it to the states to define what constitutes acceptable video monitoring practices in the workplace.

Federal Law Exception: Video Surveillance of Protected Concerted Activity Prohibited
If your workers are participating in union organization or worker solidarity marches, it’s best to turn off those cameras. Those employees are considered to be exercising their right to protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Employers may not monitor employees during these protected activities.

In a recent decision by a National Labor Relations Administrative Law Judge, Boeing Corporation was instructed to cease and desist from:

Photographing and videotaping employees engaged in workplace marches and rallies and/or near its property.
Creating the impression that its employees’ union and/or protected concerted activities are under surveillance.
Interfering with, restraining, or coercing employees in the exercise of their rights.
The NLRB determined that Boeing’s photography and video surveillance of employees during union solidarity marches interfered with workers’ right to organize and improve working conditions.

Employer Limits on Video Surveillance Depends on State Laws
In addition to protected concerted activity protected by U.S. federal law, certain states have placed their own limits on video surveillance.