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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| November 24, 2018

WATCHING WORKERS: VIDEO SURVEILLANCE OF EMPLOYEES OK IN WORK AREAS

QUESTION: Productivity at my business has been down recently and it appears that petty theft is on the rise (office supplies, bathroom supplies and small electronics have gone missing). I’d like to install some video surveillance cameras throughout the company, but I’m told this may invade the privacy of my workers. How can I see who’s slacking off, and maybe stealing, without affecting my workers’ rights?

ANSWER: You don’t say whether your business is a union shop, and that’s an important distinction. Under the National Labor Relations Act, “terms and conditions of employment” are subject to mandatory bargaining. The use of video surveillance cameras has been held to affect those terms and conditions of employment, and must be subject to collective bargaining. Brewers and Maltsters, Local Union No. 6 v NLRB, 414 F3d 36 (2005).

If your business is non-union, you are not required to bargain with your employees, or even inform them that you will be recording their conduct (although it is a good idea to let them know). However, you cannot place a video camera in an area in which employees have a “reasonable expectation of privacy,” like a bathroom, locker room, or even a break room. Courts generally find no reasonable expectation of privacy in areas where employees perform their “assigned duties” — where they work.

But union or non-union, your surveillance of your employees is limited to what can be seen on video – you’re not allowed to record audio without consent. While what you do in a public space – like the work environment – is public, what you say may still be private, with legal privacy protection. Under MCL 750.539c, it is a crime to “use a device to eavesdrop upon the conversation without the consent of all parties thereto.” Violation of the statute is a felony, punishable up to two years in prison. (The statute does not apply to phone conversations recorded by a participant in the conversation, Sullivan v. Gray, 117 Mich App 476 (1982).)

While you may want to keep installation of video cameras quiet until you apprehend your thief, video surveillance may be more valuable as a deterrent than as a tool to catching misbehaving employees in the act. Employees who know they are under surveillance may be less likely to behave badly in the first place.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com

www.gwinnlegal.com

 

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Category: Featured Column

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