Technology has allowed surveillance opportunities to become increasingly sophisticated. Employers can now monitor almost every piece of company technology, and they often have legitimate business reasons to deploy these technologies.
But just because technology makes surveillance possible does not mean every form of monitoring is lawful. So where is the line?
For Virginia employers, the legal analysis generally requires looking at Virginia privacy and employment laws, the National Labor Relations Act (NLRA), and developing the Employer’s own policies accordingly.
Surveillance and Virginia as a “One-Party Consent” State
One of the most significant Virginia statutes on the topic of audio surveillance is contained in Virginia Code § 19.2-62. The statute generally prohibits intentional interception of wire, electronic, or oral communications. However, it contains an important exception when the person conducting the interception is a party to the communication or where one party has given prior consent.
That makes audio surveillance materially more complicated than ordinary video surveillance. A security camera that records only video in an ordinary workplace area presents a different legal issue from a camera that continuously records the conversations of employees working nearby.
Employers should carefully consider whether the camera has an audio-recording function, and pause before utilizing any audio features. A camera that silently records video is not necessarily subject to the same rules as a camera that continuously captures conversations. Because Virginia’s interception statute expressly covers oral communications, enabling audio without first addressing consent can create a potential legal risk.
Video surveillance alone is otherwise common to address issues such as workplace security, theft prevention, and customer safety. However, Virginia privacy laws still come into play. A camera in a common workplace area will generally present fewer privacy concerns than a camera in a location where employees reasonably expect privacy.
Employers should therefore avoid surveillance in places such as restrooms and changing areas. They should carefully evaluate other locations where employees may otherwise have any heightened expectation of privacy.
Employers should give employees clear notice.
Even where Virginia law does not independently require advance notice of every form of workplace monitoring, employers should generally adopt a clear, written surveillance and technology-use policy. This should explain to the employee what the employer may monitor and how they monitor it. As outlined above, notice is especially important for any audio monitoring because Virginia’s consent rules can become central to whether an interception is lawful.
The National Labor Relations Act and Employees’ Protected Activity
Perhaps the most important federal law on workplace surveillance comes from the National Labor Relations Act (“NLRA”).
The NLRA protects employees when they engage in protected concerted activity concerning their wages, benefits, working conditions, and other conditions of employment. This applies regardless of whether or not an employee is a union member.
An employer may not interfere with employees in exercising those NLRA rights. This specifically identifies spying on employees’ union activities and creating an impression that employees’ union activities are being monitored as unlawful conduct.
This means an employer’s surveillance policy can be legitimate in one context and unlawful in another.
For example, an employer may ordinarily have a legitimate reason for operating security cameras in a parking lot. But if management suddenly points a camera at employees participating in a union demonstration, or begins photographing employees because they are organizing, the employer may create an NLRA problem where surveillance would otherwise be permissible.
The question is not simply whether the employer has installed the technology. The question can become what the employer is using the technology to observe. When is it being used? How do employees reasonably understand that monitoring?
For example, an employer that deploys ordinary cybersecurity software throughout its network for all employees has a substantially different situation from an employer that activates monitoring specifically to identify employees attending union meetings.
Employers should therefore avoid designing surveillance systems around the objective of identifying protected employee activity.
What about Social Media Accounts?
Virginia law also places specific limits on employer access to employees’ personal social-media accounts. Specifically, Virginia Code § 40.1-28.7:5 generally prohibits an employer from requiring a current or prospective employee to disclose the username or password to a personal social-mediaaccount or requiring the employee to add an employer as a contact.
Importantly, however, the statute does not prohibit employers from viewing information that employees make publicly available. Savvy employers may still design social media policies to address the best use of this technology in conjunction with the business’ interests.
Conclusion
Virginia employers generally have substantial authority to monitor the workplace, but remain subject to important privacy laws discussed above.
The safest approach is therefore not simply to ask: “Can we monitor our employees?”Instead, employers should ask themselves: What are we monitoring? Why are we monitoring it? How intrusive is the technology? Do employees have notice? Could the monitoring interfere with legally protected activity?
Because surveillance technology continues and its use in the workplace continues to evolve, employers should develop policies that clearly outline how and why technology will be deployed. The attorneys at Way Law can make sure these policies are compliant and tailored to your business’ unique needs. Give us a call today!