Should We Use Surveillance?

You Asked.BlogQ: Our operation runs three shifts, and per-unit manufacturing on the third shift consistently takes much longer than on the first and second shifts. Discussions with the third-shift supervisor have gotten us nowhere. I would like to install a video camera over the weekend so we can get to the bottom of the problem. Surveillance would only be of production, not of a common area or—obviously—a restroom. Therefore, I assume I am on solid legal footing, regardless of whether employees know they’re being surveilled. Do you see any issues? 

A: James McDonough wrote an excellent article on surveillance for our April edition of the Bulletin, and your situation has some interesting details. 

Even as a private employer, you must avoid violating employees’ privacy. This is most easily accomplished by publishing a policy informing employees where and when they will be under surveillance. By doing this, you lower their expectation of privacy and raise the likelihood of successfully defending a lawsuit. 

Many states require that you advise employees that the premises are under surveillance, while others do not. We can certainly understand the impulse to record employees without their knowledge, but since this issue is bound to be state-specific, please don’t even consider it without first speaking to an MSEC attorney. Utah and Arizona, for example, have statutes limiting video recording, whereas Colorado is more concerned with limiting audio recording. 

That brings us to the real issue: Let’s assume you record something of interest and you wish to discuss it with an employee appearing on your recording. Once you’ve done that, the cat’s out of the bag, and all of your employees will suddenly learn they’ve been recorded without their knowledge. How will they react? Even assuming you’re on solid legal ground, you should expect some fallout. And it could be significant. Are you prepared? 

As with all things, in employment law, an ounce of prevention is worth a pound of cure. 

These materials are general in nature not to be construed as the rendering of legal or management advice. Send your questions to cgraves@msec.org. Please tell us if you would prefer your identity not be mentioned in our answer.