Privacy Issues in the Workplace

malicious and without probable cause. The investigation was initiated during the worker’s compensation case and was therefore part of judicial and administrative proceedings subject to Section 821.6 immunity. Sanders v. American Broadcasting Companies, Inc. 490 In Sanders v. American Broadcasting Companies, Inc ., the California Supreme Court upheld a damage award against ABC news after one of its reporters went undercover as an employee and videotaped private conversations between co- workers. The video was later shown on ABC and an employee sued. The Court held that the employee had an expectation that his comments would not be made public, even though the comments were made in a setting in which other employees could hear the comments. Ops.Cal. Atty Gen No. 12-110 491 The California Attorney General has issued an opinion that continuous videotaping surveillance of commercial drivers did not constitute a misdemeanor under Labor Code section 1051, when the video file is inspected by a third party who is an agent of the driver’s employer and the videotape surveillance is for the sole benefit of the driver’s employer.

The manner of surveillance and the area under surveillance may also play a role in determining whether a privacy interest is invoked in the workplace. As a result, employers are advised to consult with legal counsel to review their video surveillance procedures and policies in the workplace. In addition, an agency cannot simply install security cameras without providing notice and an opportunity for the relevant employee associations to bargain and negotiate the effects of a decision to install security cameras. 492 This is the case regardless as to whether the cameras are overt or covert and whether the cameras are install in public or private portions of the premises. 493 While there are limitations on what recording an employer can do at the workplace, there are also limitations on what types of recordings an employer can prohibit of employees in a workplace. In the National Labor Relations Board (“NLRB”) decision Whole Foods Market, Inc. 494 , the Board prohibited a private employer from having a “no-recording” rule that prohibited employees audio and/or video recordings in company meetings without prior approval and also prohibited recording conversations with a tape recorder or other recording device unless the employee received prior approval from store or facility leadership. The Board found that the rules, while not expressly prohibiting employees from engaging in protected activities, could be reasonably construed by employees to prohibit concerted protected activity. This is because there are many situations where an audio and/or video recording may be used to promote mutual aid or protection such as recording picketing, documenting unsafe workplace equipment, or documenting the inconsistent application of workplace rules. Therefore, the rules were required to be rescinding.

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