As seen in the West Virginia Chamber HR Journal
Employers may wish to use surveillance in the workplace for a
variety of beneficial reasons, including employee safety,
prevention of theft, supervision of employees, and reducing the
potential for liability. There are, of course, negative aspects of
surveillance as well. Employees may feel like they are constantly
being watched, that the employer does not trust them, and that the
surveillance invades their personal lives. This may lead to
feelings of resentment and increased stress. Moreover, electronic
surveillance should not be used as a substitute for monitoring by
management. Rather, technology should be used as a supplement to
good old-fashioned supervising.
Common methods of surveillance include monitoring employees'
activities via video, audio, and computer. Different laws apply to
each of these areas. And, as an initial matter, it is important to
note that, when discussing surveillance of employees, there is a
difference between the rights of public versus private employees.
Public employees have greater constitutional rights under the
Fourth Amendment. The same general rules typically apply, but a
public employer will likely reach the outer bounds of permissible
surveillance first.
As it relates to video surveillance, there is no general
prohibition in West Virginia against monitoring common areas at a
place of employment. Video surveillance is effective to reduce
theft or sabotage, and often, is implemented to track and monitor
job performance. Employers are prohibited, however, from
electronically monitoring employee activities in areas designated
for their health or personal comfort, including such areas as
restrooms and lockerrooms.1 Moreover, employers should,
in the absence of consent or full written notice posted at the
location, refrain from video surveillance of interior offices and
other areas where employees could reasonably expect privacy. Video
cameras that also capture audio recordings may be subject to laws
relating to audio recording, which is discussed below. In addition,
for unionized settings, the National Labor Relations Board has held
that the installation of surveillance cameras is a mandatory
subject of bargaining and that an employer is required to bargain
with a union concerning the installation and use of cameras, the
general areas in which they may be placed, and any discipline that
may be implemented based on observations from video surveillance.
And, of course, as noted above, public employees have greater
constitutional rights, including stronger protections against
unlawful searches and seizures.
Audio surveillance is more dangerous. Wiretapping is generally
prohibited by statute.2 Thus, an employer should not
utilize microphones to conduct audio surveillance. In Bowyer v.
HI-LAD, Inc., 609 S.E.2d 895 (W.Va. 2004), the plaintiff, a
hotel employee, sued the owner of the hotel, alleging that the
hotel had subjected him to illegal audio surveillance and
monitoring in violation of the West Virginia Wiretapping and
Electronic Surveillance Act. The Supreme Court of Appeals upheld an
award of $100,000 in compensatory damages to the plaintiff, even
though there was no direct evidence that the defendant had
intercepted the plaintiff's conversation within the hotel. At
trial, the plaintiff introduced into evidence a videotape which he
had obtained from the hotel's surveillance monitoring equipment
which contained over four hours of both video and audio
interceptions of hotel employees and members of the public speaking
near the hotel's front desk and bar. Thus, the court ruled
there was sufficient circumstantial evidence that the jury could
conclude that the defendant intercepted the communications of the
plaintiff as well.
In addition, the court also upheld the jury's award of $400,000
in punitive damages. On multiple occasions, an assistant manager of
the hotel told the plaintiff that there were microphones hidden in
the hotel, but that the microphones were disconnected. According to
the court, the jury could rightly conclude that the defendant had,
for at least two years, secretly monitored verbal communications of
employees and hotel guests, had attempted to conceal its actions,
and had made no effort to make amends for its transgressions.
Note, however, that an individual conversation may be recorded
where at least one party to the conversation has given consent for
the recording and the recording is not for use in committing a
criminal act.3 Thus, the person recording the
conversation can be the one who gives the consent.
Employers will unquestionably want to retain the right to monitor
employee communications on company computers, smartphones, and
other electronic devices. Such monitoring helps police improper use
of computer resources, including for purposes of discrimination
and/or harassment, as well as protection against employees visiting
inappropriate websites, such as those with adult content or that
distribute viruses and other malware (software designed to harm
computers). Most employers use software to block content on some
websites. Software can also be implemented to track keystrokes,
content, and time spent at the employee's computer. Telephone
numbers dialed from an extension and their duration can be
registered, text messages can also be tracked, and transcripts of
those messages can be obtained.
It is important, however, that employers exercise caution in their
monitoring to ensure that they are not actually discriminating
against certain employees protected by law. For example, employers
cannot permit employees to solicit each other via email (for cookie
sales, charitable contributions, etc.) while at the same time
banning employees from discussing unionization via email.
Employers who wish to monitor activities on company-owned
computers, smartphones, and other devices should have in place a
clear written policy explaining to employees that they have no
expectation of privacy in their use of these devices and that the
employer may monitor their activities, including e-mail content and
internet usage, from time to time. It is also a good idea to have
employees sign an "acknowledgment" that they have
received and read such a policy.
As it relates to employee-owned computers, employers should be
aware of the West Virginia Computer Crime and Abuse Act, which
prohibits any person from knowingly, willfully, and without
authorization accessing a computer network to examine any
employment, salary, credit or any other financial or personal
information relating to any other person.4 In addition
to criminal violations, this Act also provides a private right of
action and expressly permits the recovery of punitive
damages.5
In sum, workplace surveillance is an area in which employers must
work to strike a balance between their right to run a business
productively and efficiently and their employees' rights to
privacy. Familiarity with the various laws that impact workplace
surveillance, and a conscientious approach to enacting
easy-to-understand policies, will go a long way in helping to
strike that balance.
Footnotes
1 W.Va. Code § 21-3-20.
2 W.Va. Code § 62-1D-3.
3 W.Va. Code § 62-1D-3(c)(2).
4 W.Va. Code § 61-3C-12.
5 W.Va. Code § 61-3C-16.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
