For many years, it has been common practice for banks, retail stores, gas stations, and other employers that regularly interact with the public to use video surveillance to prevent theft and ensure security. But what if an employer wants to use video surveillance in the workplace to monitor the conduct and performance of its employees? 
Prohibition against use of video cameras
There’s no outright prohibition in federal law against using video cameras in the workplace, assuming cameras aren’t installed in a bathroom, locker room, or some other area where employees have a high expectation of privacy. Along those lines, many states have privacy statutes that prohibit anyone from installing surveillance devices in private places. Employers using surveillance cameras should be careful not to include audio in the recordings because that may run afoul of federal and state wiretapping and eavesdropping laws.
A strong argument can be made that employees don’t have an expectation of privacy in common work areas, such as reception areas, break rooms, or conference rooms. However, if you decide to monitor employees with video cameras in those areas, or other private spaces (e.g., cubicles), you must have a legitimate business reason for doing so—for example, preventing employee misconduct, harassment, bullying, or theft.
If there’s no notice requirement in your state for employers that use video cameras in the workplace, it still may be wise to inform employees that you’re using video cameras from a practical standpoint. Employees’ awareness that cameras are present may act as a significant deterrent to any misconduct and will provide a good defense to any claims of a right to privacy in certain work areas where cameras are used.
Special rules for unionized workplaces
Employers whose workplaces are unionized must take extra precautions when using video surveillance. The National Labor Relations Act (NLRA) prohibits employers from using video cameras to monitor employees’ union activities, including union meetings and conversations involving union matters.
Additionally, the use of video surveillance is a mandatory subject of collective bargaining. As a result, unionized employers will need to take that into account before installing and using cameras in the workplace.
Do’s and don’ts
It should go without saying that you should never use video cameras in bathrooms, locker rooms, or any other rooms where employees change clothes. Any video cameras installed in other areas of the workplace should be clearly marked in order to defeat an employee’s claim of an expectation of privacy.
You should also create a clear and well-defined policy on video surveillance, so there’s no surprise or confusion among your employees. In the rare circumstance that you need to use secret video cameras to catch employee misconduct or criminal activity, you should seek legal counsel and ensure that any secret recordings are as limited in duration and scope as possible.
Bottom line
The use of video cameras in the workplace can enhance 
security and prevent employee misconduct or bad behavior. However, you should be careful not to infringe on employees’ right to privacy, and you must have a legitimate justification for using cameras in the workplace.
Justin H. Lessner is a partner with Axley Brynelson, LLP. He can be reached at 608-283-6761 or jlessner@axley.com.
