Surveillance or Monitoring in the Workplace

Abstract

Many employers recognize that need for a specific policies regarding surveillance or monitoring in the workplace. The primary purpose of such policies is to eliminate any expectation of privacy on the part of an employee utilizing company technologies or property for personal use. However, even when an employer has a policy, it is nonetheless common for employers to tolerate some degree of private usage by employees. This is one dilemma for employers and the main purpose for establishing a "zero tolerance". In any event, the employer's written policy and actual practices should clarify to employees specifically and inform third parties through implied or informed consent the expectations of the employer or business utilizing surveillance.

Question One

1. Explain where an employee can reasonably expect to have privacy in the workplace. In the office workplace there are typically two types of workspaces, an open area, in which there are several desks and where conversations can be overhead, or an enclosed office, in which—when the door is closed—conversations cannot be heard and where one would expect virtually total privacy. Explain whether it makes a difference if an employee is in an open area or in an enclosed office.

Surveillance is becoming commonplace in the work environment. Generally speaking, employers are permitted to monitor by surveillance "public" areas. When surveillance is hidden, however, and when the surveillance is surreptitious, then the employer may open themselves to a different analysis by the courts.

In fact, the California Court of Appeals has held an employee may sue for the "intrusion upon seclusion" type of invasion of privacy where the employer has caused "hidden" cameras to be placed in an area where the employee can claim a reasonable expectation of privacy, even if there is no proof that the employer actually used the cameras and observed the employee (Hernandez v. Hillsides, 2006). In other states, specifically...