Big Brother is Always Watching…and Listening? But, Did You Consent to That?
“Always eyes watching you and the voice enveloping you. Asleep or awake, indoors or out of doors, in the bath or bed—no escape. Nothing was your own except the few cubic centimeters in your skull.” 1984 (George Orwell)
Growing up , my father told me to always be aware of my surroundings, no matter where I was—today, I still think that way at times. I now tell my 15-year-old that everything she does is being “watched and recorded” . . . and then I told her to read George Orwell’s 1984. As expected, after her read, she said to me . . . “ Oh my God, are you kidding me, that was written like 100 years ago but is just like today.” While it was not written that long ago, some of Orwell’s words are more relevant than ever. Today’s technological developments in surveillance and data collection appear to far exceed Orwell’s premonitions—we are almost always being “watched and recorded.” Recording devices are so commonplace that most look to them as forms of a reliable “eye witness” of incidents.
I serve as outside general counsel to many businesses, varying in size across the globe. In that capacity, I work with companies which may have in-house counsel, or I advise management teams on day-to-day legal matters. Like a full-time in-house counsel, I am asked to address multiple legal issues, including matters related to today’s high-tech gadgets and their impact on a business and, particularly, their employees.
In order to maintain quality standards, safety, security, and shield against potential liability, employers have long engaged in monitoring employees. As a business lawyer representing clients across a wide spectrum of business fields, depending on the specific nature of a business, I generally recommend clients to install security cameras in the workplace. They are critical to help business owners discourage theft and hold workers accountable for their work. They also help protect against fraudulent lawsuits by monitoring injuries—fraudulent claims included. They also reduce insurance costs, and can increase productivity and profits by allowing staff to spend less time monitoring and more time working.
Technological advances have made electronic monitoring quite simple. Security cameras are accessible to almost everyone and generally, all are legal. Well, almost. While most federal and state laws do not carve out an explicit right to privacy for employees, an employer’s conduct is not limitless. Employers must understand the legal restrictions on employee monitoring and design policies accordingly.
One question presented to me recently by several business owners and management teams is whether the capturing, recording, storing and use of audio generated from security cameras is legal. The answer is not simple.
There is no restriction against installing and capturing images through video cameras in the work areas, presuming the cameras are not installed areas where employees have a high expectation of privacy (e.g., bathroom or locker room). If a business decides to monitor employees with video cameras in non-work areas (e.g., work spaces/cubicles or break rooms), the employer should have a legitimate business reason to do so (e.g., prevent misconduct, harassment or theft).
As for capturing audio in the workplace, whether by microphones or video cameras with audio capabilities, there is considerable variety from state to state concerning consent of the party taking the audio and the person being recorded. Most states have eavesdropping and wiretapping laws which apply to “confidential communications,” such as a private telephone calls or conversations in a room. Generally, it is illegal to reveal the contents of any communication that was intercepted illegally. Some states even limit the use of recordings even when consent is given in criminal proceedings.
Under federal wiretapping laws, it is illegal to listen to or record conversations without the consent of all parties. This means that, so long as the person doing the recording consents to the recording, then the recording is permissible. This is known as “one-party consent.” However, for example, under the Electronic Communications Privacy Act (“ECPA”), employers are given an exemption for telephone calls made “in the ordinary course of business.” Courts have interpreted this to mean that employers can listen in on all business calls but cannot listen to or record communications it knows are personal. The ECPA also applies to audio monitoring of the workplace.
As of the time of this Alert, thirty-eight states, and the District of Columbia allow individuals to record conversations with their knowledge, but do not require them to tell the other party (i.e., “one-party consent” states). In two-party consent states, absent an employee’s consent, an employer cannot capture audio recordings, even if there is a video recording being simultaneously made. Eleven states require “two-party consent”: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington. (Nevada has a one-party consent law, but its Supreme Court has interpreted it as an all-party consent law).
As noted, in California and Pennsylvania, for example, it is illegal to intercept or record a conversation unless all parties to the conversation consent to the recording.
The definition and interpretation of “consent” is up for debate. In some states, consent is found if the parties to the communication are notified that such will be recorded, and thereafter they continue to participate in the communication. This is known as “implied consent.” An example of this can be seen when a consumer calls his or her bank and is met with an automated recording stating something to the effect that the call is being recorded for quality or training reasons. Almost all states have exceptions to this rule (e.g., communications related to law enforcement, emergency services or communication service providers).
To limit their legal exposure, employers should enact policies and procedures regarding workplace surveillance cameras. Before ever installing an audio recording device, it is critical to first determine whether you are doing business in a one-party or two-party consent state. In two-party consent states, as noted above, in order for audio recording to be legal, all parties must be told that recording is occurring and each must consent to such recordings. Below are several suggestions on how employers may secure the needed two-party consent:
- When hired, employers can inform employees that recording is and will continue to take place, and it is recommended to secure an employee’s signed acknowledgment.
- Employers may enact written policies regarding workplace surveillance cameras.
- Employers may inform employees of recording taking place in a employees’ handbook.
- Employers can list the workplace locations that are to be recorded to reduce employees’ expectations of privacy.
- When using a video camera with a built-in microphone, care must be used to ensure that the audio is not turned on (unless consent given), or use a device that cannot capture audio.
- Employers may post signs stating that both video and audio recording is taking place. While signs may not be enough to inform people that visual and audio recording is occurring, they can be used as a form of implied consent if the person elects to remain in the area.
While the use of audio-enabled video cameras in the workplace can enhance security and prevent employee misconduct or bad behavior, it remains critical not to infringe on an employees’ right to privacy, and that employers have a legitimate justification for using cameras in the workplace. It is strongly recommended that employers consult with an attorney about the laws concerning using audio surveillance technology in the workplace before installing them.
If you have any questions about this alert or employer privacy policies and recording practices, please contact Leech Tishman’s Employment Practice Group.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, internal investigations, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in El Segundo, CA, Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.