Video technology has been
around for decades. As technology advances, video has become simple, cost
effective, and available on smartphones,
laptop computers, and spy-movie-type
devices. Employers can use video to screen
applicants, protect valuable inventory, or scrutinize employee behavior,
but there are limitations. Here are a few cautions for employers thinking
about the use of video:
Recruiting. Using video interviews may
make recruiting easier, but alternatives must be available when a request is
made for a reasonable accommodation. Under both Title VII and the Americans
with Disabilities Act, employers must provide reasonable accommodations for
an employee’s or applicant’s disability or religious beliefs. If an
applicant is unable to conduct a video interview because of disability or
religious conviction, the employer must provide an alternative interview
method.
Surveillance to Prevent
Theft. Employers may
legitimately use video cameras to capture evidence of theft of inventory or
other company property. The placement of the cameras should, however,
consider employees’ reasonable expectation of privacy. Locker rooms,
bathrooms, and sometimes even offices may be places where employees have a
reasonable expectation of privacy, and cameras should not be placed in such
locations. Instead, cameras should be directed toward the inventory or
other property that is at risk.
Surveillance of Employee
Behavior. Employers may use
video cameras to monitor employee behavior or misconduct. For
example, in Hernandez
v. Hillsides, the employer wanted to identify and stop whoever was
accessing pornography on the computer in an office shared by two
employees. The two employees who shared the office were not suspected of
viewing pornography, but a video camera was installed without their
knowledge. Although they were never actually recorded (the pornography
viewing and video recording occurred outside of their working hours), the
employees were distraught when they discovered that the camera was placed in
their office and filed an action against the employer for invasion of privacy.
The California Supreme Court acknowledged the employee’s right to privacy, but
also noted the employer’s legitimate need to determine who was accessing
pornography and discussed the need to balance the two interests. The
employees’ claims were dismissed on summary judgment.
Concerted Protected
Activity. Under the National
Labor Relations Act, employers cannot investigate employees who are engaged in
concerted protected activity, such as union organizing or gathering to complain
about a supervisor or other working conditions. This prohibition on
investigation includes the use of video surveillance. Although unionized
employers may still use video for legitimate business purposes, it can’t be
used to catch employees signing union cards, and, of course, an employer cannot
take disciplinary action against employees if they are caught on tape engaging
in concerted protected activity.
State
Law. While most states require only the consent of one
party to a recording (including video), many
states have consent laws requiring that everyone on the video know of and
consent to be in the video. Connecticut
requires employers to notify employees if they are being monitored.
Posted by Judy Langevin
