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8/9/2004
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The Privacy Lawyer: To Videotape Or Not To Videotape

Employers may have good reason for monitoring employees through videotaping or other means, but they'd also better have smart policies in place when they take these steps or risk legal exposure, Parry Aftab says.

Typically, employees seek relief under the common law tort of invasion of privacy. (Not all states recognize this tort, however.) The invasion-of-privacy tort generally requires an intentional intrusion, "physical or otherwise, upon the solitude or seclusion of another upon his private affairs, or concerns ... if the intrusion would be highly offensive to a reasonable person."

One of the key conditions to prosecuting an action for invasion of privacy is whether or not the person has a "reasonable expectation of privacy." Courts across the country are finding with more and more frequency that no reasonable expectation of privacy exists with video surveillance or with hidden surveillance if the physical space surveyed is a public and open space. However, when the video surveillance is hidden in a space that isn't clearly public and open, or records areas generally considered "private," such as rest rooms or dressing rooms, the courts have been divided on whether an invasion of privacy has occurred.

Perhaps most troubling to an employer is the possibility that broad damages for emotional distress may be applied, without the usual safeguard of requiring a physical manifestation of the injury. In his summary judgment ruling, the judge in the Boston Sheraton case looked to the Restatement of Torts and found that emotional-distress damages can be sufficiently proven with the mere testimony of the plaintiffs.

Employees in some states also can seek recourse under those states' privacy statutes that govern invasion-of-privacy claims. Massachusetts, Connecticut, and California are examples of states with invasion-of-privacy statutes. (Although many states, such as New York, have statutes that refer to "privacy," they deal only with rights of publicity, rather than intrusions on privacy.) Massachusetts' privacy statute is typical of the state privacy-statutory scheme. It prohibits "unreasonable, substantial, or serious interference with privacy." In the Boston Sheraton case, the plaintiffs relied on this statute, as well as the federal privacy protections and legal underpinnings.

Under the Massachusetts test, the interest in obtaining and disseminating the information is balanced against the nature and substantiality of the privacy intrusion.

Connecticut's privacy scheme, Conn. Gen. Stat. @31-48b, goes several steps further, specifically regulating employers' rights to use electronic surveillance. Connecticut employers may not use any electronic surveillance device or system, including a CCTV (with or without sound) to record or monitor employees in areas "designed for [their] health or personal comfort," such as rest rooms, locker rooms, and employee lounges.

Whether they have a right to privacy under employment circumstances or not, many employees find the intrusion offensive and surveillance of private areas, such as dressing rooms, restrooms and locker rooms unacceptable. The Privacy For Consumers And Workers Act was introduced in Congress several years ago to address this concern. It required advance notification to both employees and customers about the use of electronic monitoring and prohibited undisclosed monitoring of rest rooms, dressing rooms, and locker rooms, except when the employer suspected illegal conduct.

Although never adopted, that proposed legislation points out the need for informing employees, among others, of the intent to monitor the workplace. Although the American Management Association surveys indicate that only a minority of the companies surveyed inform employees of their monitoring and surveillance practices, smart employers are choosing to notify employees in advance about the possibility that their activities may be monitored. These notices are often contained in a written electronic media policy or within the employee handbook. Given the risks involved in not informing employees of monitoring and surveillance activities, it's smart employee relations, smart risk management, and smart management.

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