Watch It! Surveillance Measures At Work

There are almost as many reasons for using electronic surveillance as there are questions raised by employers when they first consider putting employee monitoring systems into place.

By Elsa G. Ramos

Some may remember a catchy and well-known song from the 1980’s by American singer Rockwell, titled “Somebody’s Watching Me.” It tells the story of a man who believed he was constantly being watched by someone while in his home, and that his privacy was thus severely compromised.

Because more companies are now using monitoring and surveillance systems to watch over their businesses, employers may now hear similar refrains from their employees.

There are many reasons for employers to implement surveillance measures at work.

These include: to provide safety and security for persons and property on the employer’s premises, to ensure satisfactory job performance by staff, to confirm that the employer’s rules or policies are followed, to maintain quality control standards when dealing with customers or clients, to corroborate timekeeping records, or to oversee inventory control protocols.

This is by no means an exhaustive list. There are almost as many reasons for using electronic surveillance as there are questions raised by employers when they first consider putting employee monitoring systems into place.

Here are some basics.

Can Employers Videotape Employees?

Yes. Employers in Texas can install video cameras on their premises and record the activities of their employees, as well as those of customers/clients. If only video is recorded, notice and consent for the recording is not mandatory, but it is always a good idea. Of course, employers should never place video cameras in locations where employees have an expectation of privacy, such as bathrooms and locker rooms.

For a sample video surveillance policy, review this link from our employer handbook, Especially for Texas Employers: http://www.twc.state.tx.us/news/efte/video_surveillance_policy.html.

Be aware that Texas Penal Code § 21.15 INVASIVE VISUAL RECORDING prohibits the recording and transmitting of an image of a person’s intimate area, such as a person’s genitals, if the person has a reasonable expectation that the intimate area is not subject to public view.

The statute also prohibits photographs or electronic recording of another person in a bathroom or changing room. An offense under this section is a state jail felony. For complete text of the statute, see: http://www.statutes.legis.state.tx.us/docs/pe/htm/pe.21.htm.

Can Employers Record Employee Conversations?

It depends. In Texas, it is legal to record a conversation without first providing notice and obtaining consent of all parties if at least one party to the conversation is aware of the recording and consents.

However, under Texas Penal Code § 16.02 UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS, it is a felony offense to record any communication if no party involved in the conversation has provided consent. See the full text of the statute here: http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.16.htm.

Therefore, if an employer would like to record audio in the workplace, the employer should provide notice to employees and obtain written consent. See our sample consent form from Especially for Texas Employers: http://www.twc.state.tx.us/news/efte/video_surveillance _policy.html.

The same holds true for members of the public who may enter the employers’ premises and be subject to being recorded. Employers should post a sign at the entrance to work locations or job sites and inform everyone who enters that, by doing so, they are subject to being recorded.

Can Employers Monitor Computer Usage?

Yes. According to a fact sheet titled “Workplace Privacy and Employee Monitoring” from the Privacy Rights Clearinghouse, a nonprofit consumer education and advocacy organization, “Almost everything you do on your office computer can be monitored. Such monitoring is virtually unregulated.” See the complete fact sheet here: https://www.privacyrights.org/consumer-guides /workplaceprivacy-and-employee-monitoring.

Employers have a lot of flexibility when monitoring computer usage at work. However, they will want to have policies that address such monitoring. Our employer handbook, Especially for Texas Employers explains that, “Every employer needs to have a detailed policy regarding use of company computers and resources accessed with computers, such as e-mail, internet, and the company intranet, if one exists.” For a sample internet, e-mail, and computer use policy, see: http://www.twc.state.tx.us/news/efte/internetpolicy.html.

For a more thorough discussion on monitoring use of company computers, please review: http://www.twc.state.tx.us/news/efte/monitoring_computers_internet.html.

But Wait! If Employers Can Record Video and Audio, Can Employees Do the Same?

Yes, if they follow the guidelines above. Technology has made it possible for employees to carry on their persons at all times a device that can easily record audio and video.

While many employers choose to implement cell phone policies to minimize distractions, to protect client confidentiality, and to prevent potentially embarrassing incidents from going viral on social media sites, employers should be wary of “no-recording” policies that bar all recording of workplace interactions. Such policies may violate the National Labor Relations Act (NLRA).

The National Labor Relations Board (NLRB), the entity which enforces the NLRA, has held that such a blanket ban on recordings unlawfully interferes with the rights of employees to engage in protected employee activity, such as employee discussions of their terms and conditions of employment. On June 1, 2017, a United States Court of Appeals upheld an NLRB finding that an employer’s no-recording policy was over-broad and violated the NLRA. See: https://www.newyorkemploymentattorneyblog.com/files/2017/06/Whole_Foods_Market _Group_v_NLRB.pdf.

Bottom Line Employers in Texas have a lot of discretion when implementing surveillance and monitoring systems in the workplace. As discussed, instituting such measures serves to further many valid business purposes.

However, in order to avoid costly and serious consequences, it is important for employers to ensure compliance with applicable state and federal laws. For questions about this issue, or other employment law related topics, please call our employer hotline at 1-800-832-9394.

This article is courtesy of  Texas Business Today, a publication of Texas Workforce Commission.  Elsa G. Ramos, Legal Council to Commissioner Ruth R. Hughs