Privacy and surveillance cameras in the workplace

Medical Laboratory Observer, March, 2006 by Barbara Harty-Golder

Q We have a small lab in our emergency room (ER). We find that unauthorized people are going in there removing things. We also have issues with items missing from our supply storeroom. Would it be legal for us to install a surveillance camera in that area as well as in the ER lab?

A Whether surveillance cameras may be used raises issues of privacy law, and the answer depends on the nature of the workplace, the placement and kind of camera, and--to some extent--on state law. In general, surveillance cameras are permitted in public areas where there is no expectation of privacy (particularly if they are conspicuous) or if notices that surveillance is taking place are posted. Just think about the last time you went to an ATM or to a convenience store--you were almost certainly "on camera" and legitimately so.

Experts in the field claim that use of cameras can reduce crime, including theft of items from storage areas. Civil libertarians cry foul because of privacy concerns. Although general rules exist that permit the placement of cameras in many employment situations, your question raises some very specific issues that will require your institutional attorney to address before you can determine whether placing a camera is permissible.

The open workplace, where employees are engaged in daily work activities, is generally considered one of those "public places" for which no employee has a reasonable expectation of privacy. In examining the use of workplace cameras that were being protested by employees, courts have found that the camera does nothing more than provide access to information clearly observable by the human eye--had someone been there to observe it. As long as cameras are not placed in areas where employees do have an expectation of privacy (i.e., bathrooms, changing rooms, locker-room areas), courts have generally upheld their use by private employers.

Areas that have some expectation of privacy or are not part of the daily workplace, however, fall into a gray area. The installation of cameras in a private office, for example, may require the permission of the office tenant. Check with your institutional attorney to determine whether your lab falls into such a category. Even though the storage area is not part of the general public area of the workplace (exactly your concern), it is unlikely that there is a reasonable expectation of privacy there--but legal issues that affect placement of a camera in such an area vary from jurisdiction to jurisdiction. Depending on the physical relationship of the lab to the patient-care areas, which do carry some expectation of privacy, locating a camera in the lab area itself may also be a problem. By all means, check!

Most surveillance cameras are video only, and for good reason. State laws vary regarding recording conversations, and federal laws prevent the indiscriminate, undisclosed taping of conversations. Again, in general, if there is notice that taping is being done (i.e., "This conversation may be recorded for security or quality control purposes.") and the individual being taped has the opportunity to refuse either by objection or action (i.e., not carrying on the conversation after the disclaimer), such taping is permitted. Failing to take into account the applicable legal rules can lead to real legal disaster. So, before any surveillance program is instituted--especially one that includes audiotaping--it is essential to have your institutional attorney review the parameters under which such a program must operate.

Important to recognize is that surveillance may create legal risk for the employer if it raises the expectation that because there is a camera, someone is watching and is ready to respond in real time to anything that goes on. Under such circumstances, employees may have an expectation of rescue if attacked in an area under surveillance. For this reason, it is also important (1) to avoid the use of "dummy" cameras and (2) to make certain employees understand the purposes and limitations of the surveillance program.

Last--but not least--the simple answer can often be the most effective and least costly. A good set of locks on supply closets and lab doors with keys issued only to authorized personnel might be the easiest way to solve your problem--an approach that does not raise issues of privacy.

Barbara Harty-Golder is a pathologist-attorney consultant in Chattanooga, TN. She maintains a law practice with a special interest in medical law. She writes and lectures extensively on healthcare law, risk management, and human resource management

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By Barbara Harty-Golder, MD, JD

MLO's "Liability and the Lab" is intended to provide risk management and human resource management education; it is not intended to provide specific legal advice. If you require legal advice, the services of an attorney should be sought. Dr. Harty-Golder welcomes your questions, which can be sent to her at toadehall@comcast.net.