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Big Brother Is Watching You:
Is It Legal?
by Marc H. Herman
In these days of heightened concern over employee misconduct and corporate espionage, many private employers take additional steps to enhance their security through surveillance. Is this lawful?
Video Alone
In New Jersey, internal corporate surveillance is controlled by State statutes as well as the Federal law commonly referred to as "The Wiretap Act." Interestingly, video recordings alone, those without an audio component, fall outside the scope of these statutes. When interpreting these statutes, New Jersey courts have ruled that a homeowner, who installs a video surveillance system in her home to record activities that occur within, has acted within the scope of the law. That is, the taping of a child care employee without the knowledge of such employee is lawful so long as audio sound is not recorded.
Video With Audio
When oral communications are involved, however, the issue becomes less clear. As a general principle, if a person has a reasonable expectation of privacy in an oral communication, interception by a third party may be unlawful. In the workplace context, the expectation of privacy is addressed on a case-by-case basis. Courts have found generally that many offices are so open that an employee can have no expectation of privacy. Examples of such a rule can be seen in many areas: a law clerk does not have an expectation of privacy in the court's chambers, desks, file cabinets or other work areas; a bank owner, who leaves his office door open, does not have an expectation of privacy when working in his private office; employees of a telephone company do not have an expectation of privacy in open work areas; and two mechanics have no expectation of privacy when arguing in a machine shop where they work. Most significantly, the courts have held that a currency trader does not have a reasonable expectation of privacy in conversations on the exchange floor since there can be no reasonable expectation that legitimate bystanders are not carrying concealed tape recorders.
Exceptions apply and need to be considered closely. The most important exception includes the audio taping of conduct of certain protected professions, including doctors, clergy, news reporters and attorneys. Under certain circumstances eavesdropping may lead to criminal penalties.
A Solution
Concerns regarding corporate surveillance may be overcome through informed consent prior to recording. That is to say, an employer may require as a condition of employment that an employee accept the recording of communications while at work. This may be done through a carefully and properly drafted disclosure form, as well as clear disclosures that workplace recordings are being made.
In sum, an employer can record the actions of its employees for a myriad of uses. However, care must be taken by the employer in placement and operation of the devices, as well as the later use of those recordings. With careful planning and coordination, security can be enhanced through the use of recording devices.
Marc H. Herman is an associate of Hill Wallack where he is a member of the Litigation Division and Workers' Compensation Practice Group.
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