By providing the above forms of notice, employers could claim they received implied consent from employees to engage in workplace surveillance. Alternatively, employers could seek an express, signed consent from employees to monitor the workplace, thereby providing an additional layer of protection. Such consent could be obtained by having employees execute an acknowledgment that specifically identifies the sections of the employee handbook that contains the policies outlined above and the employee’s agreement to those monitoring policies.
Regarding video surveillance, many states, like New Hampshire, require two party consent to record audio. Therefore, security cameras should not capture audio of employees’ conversations, which could implicate applicable wiretapping statutes and potentially be considered a crime. Similarly, employers should confirm whether such video recordings capture biometric information, such as facial characteristics, which receives privacy and/or security protection in a growing number of states outside of New Hampshire. Video surveillance should also be limited to the least intrusive time, place, and method to serve the employer’s legitimate business purpose.
Employers should also consider a plan for retaining any recordings and responding to requests for such materials. Through this process, employers could determine whether surveillance tapes record in a loop or are retained for a period of time before being automatically deleted. If a security event or injury occurs, or if a request has been made for a recording, employers should take steps to immediately preserve the recording and isolate it from any routine deletion process until a disclosure determination is made. Failure to preserve may result in court ordered sanctions.
Finally, employers should carefully assess whether the benefits of increased surveillance outweigh the potential negative impact on employee morale. Employers may want to consider alternative ways to achieve their goals without intruding on their employees’ sense of privacy and autonomy.
Overall, employers must consider various legal implications before implementing any surveillance in the workplace. By taking practical steps and following legal requirements, employers can help reduce legal risks and protect their business interests while respecting the privacy rights of their employees. Consultation with legal counsel is recommended to ensure compliance with applicable laws and regulations.