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Video Surveillance of Employees

In the US, we know we are being constantly surveilled, as we go about our lives. The average American is apparently caught on a surveillance camera more than 75 times a day.


Let’s talk about surveillance in the workplace, where many Americans spend the majority of their waking hours—fortunately or unfortunately. Can you, as an employee, enjoy special protections against surveillance at work?


Probably not, unless you are a current or prospective union member. If you are a current or prospective union member, then pursuant to the National Labor Relations Act (NLRA), your employer is prohibited from employing video surveillance in a way that is meant to intimidate you from exercising your federal rights.


If you are participating in union organizing activity on behalf of a group of employees, under the NLRA, your employer may not monitor or record these activities, because the National Labor Relations Board (NLRB) views that as intimidating or deterring employees from exercising their federal rights.


What if you work for a governmental employer? Said employer must ensure that it complies with the 4th Amendment and 14th amendment protections against unreasonable searches and seizures. Monitoring of an employee by a governmental employer could be considered an illegal search or seizure if it extends into places where an employee would have a reasonable expectation of privacy.


What if you’re not a current or prospective union employee, and you work for a private, non-government employer? Then, just understand that you don’t have a general reasonable expectation of privacy on the job, since the workplace doesn’t belong to you—it belongs to your employer. That doesn’t mean there aren’t limits though—states have placed their own limits on video surveillance.


In New York State, a private employer is allowed to engage in secret, video-only surveillance of its employees in certain areas of the workplace—the employees may not be videotaped in restrooms, locker rooms, or any rooms where the employer has designated for employees to change their clothes, unless authorized by court order. (See NY Labor Law, Section 203). Also, a private employer in New York may not eavesdrop, because to do so would be a violation of the NY Penal Code, Section 250.00, i.e. a felony. What this means is that surreptitious video surveillance in the areas referenced above is lawful, provided the video cameras do not record the human voice.


Employers must take care not to record employees in order to engage in any retribution for the employees’ exercising their civil rights at work. Some New York federal court judges have held that installing hidden cameras to surreptitiously record employees who have complaint about unlawful discrimination and harassment is deemed an adverse action under the NYC Human Rights Law, and other statutes.

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