March 05, 2013

Video Surveillance of Employees—a Birds-Eye View for Employers

For a variety of reasons, employers may want to undertake video surveillance of their employees. Is an employee taking advantage of a worker’s compensation claim? Are employees engaging in theft from a storage room? Are employees doing their jobs as instructed? These are just a few of the many questions employers may have for which video surveillance may provide an answer. Yet the video surveillance option inevitably leads to a critical question: How far can an employer go?

General RuleWhile there are few bright line rules in the area of surveillance (and even less regulation), an employer can undertake video surveillance of an employee if the employee is in a location open to public view and the employer is undertaking surveillance from a lawful vantage point.

Lawful Vantage PointThe “lawful-vantage-point” concept stands for the principle that individuals have no expectation of privacy while in areas of plain sight or places open to public view, nor can individuals expect privacy in those things viewable from public places.

For this reason, employers can observe employees in places of public view and from locations of public view. Pennsylvania courts have found places such as airports, parked vehicles on public streets, front porches, rooftops, courthouses, and storefronts are fair game as public spaces and as lawful vantage points. Recording employees in these locations, from a lawful vantage point, is perfectly acceptable.

What Is Too Far?Common sense and the law dictates that an employer should not undertake video surveillance of employees who are in sensitive areas such as bathrooms, tanning beds, changing areas, and medical examination areas. Installing video cameras within these areas is clearly not a good idea. 

But what about less clear territory? What about recording an employee while he is in a place of worship? In Tagouma v. Investigative Consultant Servs, 4 A.3d 170(Pa. Super 2010), an employer’s agent recorded the employee while he prayed in a mosque. The court found that one does not enjoy a right to privacy when video recorded in a place of worship while others were also in the worship service and the subject was in plain sight, in front of a plate glass window. Even though a place of worship may be considered a sacred space, it is still a public one. Thus, since the employee was filmed while in a public place and, from a lawful vantage point, the employer acted appropriately.

The context of the surveillance may also weigh in the determination of whether it is appropriate. It has long been the law in Pennsylvania that intrusions into privacy occurring within the context of a reasonable investigation, particularly relating to a worker’s compensation claim,have legitimacy. For this reason, an employer’s surveillance activities are subject to less scrutiny from courts when conducted in connection with a legitimate investigation.

What It Means to You

Understanding the parameters of surveillance will allow employers to feel confident in the use of responsible and legal video surveillance to help answer questions they may have about their employees and engage in legitimate investigation activities.

For more information on video surveillance, contact Cipriani and Werner, P.C. at 412-563-2500.