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Is it wrong to videotape people at work without there knowledge.

Re: Videotaping

Although I cannot give you any specific legal advice, I can tell you that each time you videotape a person without his/her consent, you open yourself up to potential legal liability.

As a general matter, if you videotape people in public places, even if they have not consented to being recorded, you will not be liable for a violation of "intrusion upon seclusion" because by exposing themselves to public observation, people are not entitled to the same level of privacy that they would enjoy within their own homes. Examples include videotaping a person in a public park, at a sporting event, on the steps of a government building, or at another public location. Federal and state laws, however, limit the right to record the activities of people engaged in private activities in places where they would reasonably expect to be private. If you videotape people under such circumstances, you could be liable for a violation of intrusion. For example, it is illegal in Illinois to "videotape, photograph, or film" people without their consent in "a restroom, tanning bed, or tanning salon, locker room, changing room or hotel bedroom." 720 Ill. Comp. Stat. 5/26-4(a).

In regard to the expectation of employee privacy in the workplace, the Supreme Court has recognized that "operational realities of the workplace," such as actual office practices or regulations, may weaken an employee's privacy expectation. Therefore, "the objective component of an employee's purported expectation of privacy must be assessed in the full context of the particular employment relation." See O'Connor v. Ortega, 480 U.S. 709, 717 (1987). As a result, the legality of videotaping an employee without his/her consent will depend on several aspects of the workplace environment and employment relationship in question. In determining whether an employee has a reasonable expectation of privacy in his/her workplace, lower federal courts have typically examined matters including "whether the work area was given over to an employee's exclusive use, the extent to which other employees had access to the work area, and whether office regulations placed employees on notice that certain areas were subject to employer intrusions." See United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991). Many jurisdictions consider several additional factors when assessing the legality of a particular company's surveillance system including whether the video camera was publicly viewable or hidden, whether the work area was open to public view, and whether the video included sound.

Videotaping employees at work without their consent may also expose you to legal liability for violation of wiretapping laws. The Electronic Privacy Communications Act of 1986 (EPCA) provides some latitude to employers when monitoring employee conversations; employers are protected under the EPCA so long as the monitoring occurs (1) in the ordinary course of business, or (2) with the employee's express or implied consent.

Workplace-generated communications including voice mails, emails and other online activities, on the other hand, are generally open to employer surveillance so long as monitoring is not excessive and serves a legitimate business purpose. See Fraser v. National Mutual Insurance Co., 352 F.3d 107, 113 (3rd Cir. 2003). In fact, according to a 2007 survey conducted by the American Management Association (AMA), sixty-six percent of companies claimed to monitor employee Internet activities, citing potential liability as the primary reason for monitoring. One employer has even gone so far as terminating its employees based on their personal comments made outside of work on a private, password-protected online site, where the employer was not a user of the site. The United States District Court for the District of New Jersey, however, will soon consider whether such an employment termination is outside the scope of employer investigatory authority. See Pietrylo v. Hillstone Restaurant Group, Docket No. 2:06-cv-05754 (D.N.J. 2008).

In any case, employers should be cautious when walking the fine line between authorized employee-monitoring activities and protected private employee action. Employers should develop and implement consistent policies and procedures for monitoring employee activity that balance employee privacy interests with employer efficiency concerns. These policies should be made available to all employees. It is probably best for those employers who intend to use video surveillance to obtain informed consent from their employees before implementing video monitoring to avoid any legal liability (such consent can take the form of a signed acknowledgement that the employee has received and read an employee manual that contains the company's surveillance policy).

For more information on privacy issues, please see the Gathering Private Information section of the CMLP Legal Guide. For more details on federal and state wiretapping laws, see the Recording Phone Calls and Conversations section of the Legal Guide.

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