Employers have a right to monitor their employees in order to ensure an efficient workplace, but the surveillance permitted by technological advances can transgress the line between legal and illegal employee surveillance. In 2005 10% of employers used closed circuit surveillance to monitor all of their employees and 6% to monitor specific positions, yet this surveillance like many of the enhancements permitted by the advancements in technology must be carefully tailored to remain within the bounds of law. Closed circuit surveillance of employees raises three types of concerns.
- Violations of the Fourth Amendment
- Violations of Massachusetts law
- Violations of Federal statutory law
The Fourth Amendment prohibits actions by either the government or private agents thereof that infringe on an individual’s reasonable expectation of privacy unless the government first obtains a warrant. Most concerns regarding the secret recording of employees are centered around whether society is willing to recognize the employee’s expectation of privacy. Courts have held that in general there is no societally recognized expectation of privacy in open office areas, but surveillance of closed offices, locker rooms, or cubicles may violate a societal privacy interest.
Video surveillance of an individual where there exists a societally recognized expectation of privacy may also raise a tort claim based on an invasion of privacy under Massachusetts General Laws. There are four types of invasions of privacy under Massachusetts law.
- Intrusion upon a persons solitude or seclusion
- Appropriation of a persons name or likeness
- Public disclosure of private facts about a person
- Placing a person in a false light
Video surveillance in a workplace traditionally involves the first type of invasion, intrusion upon a person’s solitude or seclusion. For such an intrusion to occur there must be an intrusion on an area that society recognizes as private. These are the same areas recognized by society as being private under the Fourth Amendment.
Federal and State law, including Massachusetts Law and the Federal Omnibus Crime Control Act, were enacted to limit the secret audio recording of conversations, but they have been interpreted to also prohibit the video recording of conversations when the recording includes both video and audio, and neither party to the conversation has consented to the recording.
While many states, such as Connecticut, have enacted laws expressly regulating the video surveillance of employees by employers, Massachusetts lacks such a statute. This creates some degree of uncertainty regarding the legality of covert surveillance of employees, but any surveillance raises concerns based on both an invasion of privacy, a violation of Constitutional rights against unwarranted searches, and State and Federal laws regulating eavesdropping on audio conversations.