The California Constitution gives residents the right to privacy. However, this right is balanced against a business' legitimate purpose in making video recordings. Laws in California prohibit certain types of recording, based on the location of the recording and the type of activity being recorded.
Bathrooms and Locker Rooms
The California Labor Code specifically prohibits employers from recording in bathrooms, locker rooms or any other type of room where the purpose is to change clothing. The law applies to public and private employers. The only exception is if the employer has a court order authorizing it to record in these areas.
The National Labor Relations Act contains a clause that prohibits employers from recording video of union meetings or activities. It also prohibits employers from using video recordings in any way that could intimidate employees who could become union members. California employers must comply with this federal act.
Some video recording devices have the ability to also make audio recordings. However, California is a two-party consent state to audio recordings, which means that the person doing the taping and the person being recorded both must agree to be recorded for it to be legal. Absent the employee's consent, the employer cannot make audio recordings, even if there is also being a video made at the same time. The law firm of Seyfarth Shaw, LLP recommends putting the recorded person's consent on the tape itself.
Outside the specific exceptions noted above, businesses have the right to record their employees as long as their interest outweighs the employee's privacy interest, which is determined on a case-by-case basis. An employee can sue his employer if:
- the employer violated his right to privacy;
- the employee had a reasonable expectation of privacy in the rights that the employer violated;
- the invasion was serious; and
- the employee suffered harm.
An employee may have a "reasonable expectation of privacy" if the area is covered by blinds or is only accessible with a key. California courts have dismissed the notion that an employee has a right to privacy in a public location in the workplace, such as a common area where people walk through. The California Supreme Court has held that en employee must show that the employer's conduct would be "highly offensive to a reasonable person" to win. To make this determination, the court may consider such factors as the time of day the recording was made, the area recorded, how long the recordings were made, who it captured and whether the employer used safeguards to limit other people from accessing the surveillance equipment.
To limit their legal exposure, the Los Angeles County Bar Association recommends employers enact clear policies regarding workplace surveillance cameras. Employees should read and sign policies regarding the surveillance. In addition, employers can list the places that are to be recorded on the policy to reduce the employees' expectation of privacy.
California labor law attorney Paul Hastings suggests limiting the scope, duration and methods of surveillance if an employer has a limited problem that it wants to address.