Adam Rifkin is trying to promote his new movie, Look, an examination of how pervasive video surveillance cameras have become and the sometimes shocking footage they capture.
The movie's producers intended to mail postcards with scenes from the movie and the copy "Will you be watching? May 5, 2009" on the back. One of the postcards carries an image from the movie which shows a man having his way with a woman in a storage closet. Technically, there's no nudity but the Post Office has called the promotional piece "obscene" and won't allow it to be mailed. What would you do if it were you caught on your employer's camera?
These days an important issue at work involves the right balance between your privacy and your employer's right to control and manage the workplace. Your employer may want to monitor you by using video cameras. But when does videotaping employees go too far? When does monitoring actually intrude upon you and your privacy rights?
Your Privacy Rights as an Employee
Whether your privacy rights have been violated by your employer is determined through a balancing of rights. Your employer's right to have information about your activities must be balanced against a reasonable expectation of privacy in the workplace.
The US Supreme Court decided that a workplace search may be legal if the search is necessary and has a reasonable scope. The case above involved a government employee, but may be applied to private sector employees. State courts generally realize that an invasion of privacy by employers requires an intentional disturbance into your private business. It must be highly offensive to a reasonable person.
Video Monitoring of Employees
Generally, videotaping isn't highly offensive if it's limited to job performance and related workplace activities. Employers may videotape to prevent theft or other bad behavior in the workplace. Videotaping increases safety to all employees, promotes good behavior or preserves crime evidence.
However, your employer may have violated your right to privacy if they videotaped you in areas considered private and personal without a necessary business reason. Such areas include bathrooms, locker rooms or break rooms.
Balance Interests in the Workplace
Employers must let you know why and where they use video and notify all employees in writing that video surveillance is conducted. They also need to ask you to sign a document saying you know you may be monitored. However, this doesn't stop them from doing it without your knowledge. Additionally, employers must clearly state the areas that are off limits from videotaping and explain they're for personal use and don't have any job related function.
Look at Your Employment Agreement
If you sue for invasion of privacy, you must first show a legitimate expectation of privacy at your job. This expectation is greatly reduced after you've been told by your employer that a certain activity may be monitored (for example, Internet use) or when you waive your right to privacy by signing a document, such as an employment agreement.
Remember, there are valid reasons that employers may use video surveillance; primarily, preventing theft or employee safety. Written and posted privacy guidelines concerning the limits and reasons for videotaping the workplace can safeguard your privacy rights and protect your employer against costly lawsuits.
Questions for Your Attorney
- There have been some security issues at my workplace, involving customers, not employees; does my employer have to tell me if my work area is being videotaped?
- If I'm videotaped without my knowledge at work, and I'm later fired for cause based on something that was taped, can my employer use that to keep me from claiming unemployment benefits?
- Can my employer give me notice of videotaping polices through an employee handbook, or should I be provided with a specific notice?