Monitoring Your Employees: Proceed with Caution
By Sonal Shah, JD, Senior Employment Law Counsel
Published April 10, 2018
Surveys estimate that over 50% of employers use video monitoring in the workplace. Reasons include tracking employee performance and preventing theft, violence, and destruction of property. While employers may find that video monitoring offers several benefits, they must proceed with caution to ensure their actions are compliant with the law.
Under federal law, there is no specific prohibition against monitoring employees in the workplace. The only exception is under the National Labor Relations Act (NLRA). In accordance with this Act, the use of video monitoring in a unionized workplace must be the subject of collective bargaining. In addition, in all workplaces, the monitoring of employees engaging in protected concerted activity (i.e., union organizing, workplace marches, or rallies) is strictly prohibited.
In addition to the above, many states have enacted specific legislation limiting workplace surveillance. While Illinois has not enacted such legislation, the Illinois courts have held that employers are prohibited from violating employees’ rights to privacy. This means you cannot conduct surveillance of your employees where there is a reasonable expectation of privacy, such as in bathrooms and locker rooms. It does not prohibit cameras where there is no reasonable expectation of privacy, such as in the lunchroom or a common area where work is performed. That being said, to avoid any potential invasion of privacy claims, our recommendation is that you always have a legitimate business purposes for the monitoring and notify employees they may be subject to monitoring. This can be done through a policy in your employee handbook or signs posted in the area.1
Management Association members with questions about the use of video monitoring should contact us at 800-448-4584 or firstname.lastname@example.org.
1 If your cameras also include sound, it is recommended that you obtain signed authorization from those being taped to avoid claims under both federal wiretapping laws and Illinois’ eavesdropping laws.