Can HR use hidden surveillance on employees to catch misconduct?

Attention business owners and HR pros – if you are trying to gather evidence of employee misconduct be sure you know the wiretapping laws.  On January 22, 2016 a Massachusetts district court found probable cause that 3 human resources employees, including the HR Manager, committed unlawful wiretapping of an employee.    According to a report in the Worchester Telegraph, 2 Wyman Gordon HR employees for illegal wiretapping, after they set up a wireless camera in the employee’s working area to catch him sleeping on the job.  Wyman-Gordon is a worldwide supplier to the aerospace and industrial gas turbine industries.

What happened? The employee, a plumber, was allegedly sleeping many hours on his late night shift.  So, HR ordered a camera to catch the employee sleeping.  The camera captured video and audio.  The police were contacted because the employee (who discovered the wireless camera in his work area) took the camera without company permission.  The plumber employee was fired as a result of the video/audio recording.  A lawyer for the fired employee contacted the police department and alleged that his client was the subject of an illegal wiretap, and turned over the wireless camera and a compact disk containing video files he discovered on the camera.  Police experts examined the camera and found the camera was equipped with a recording device, and the microphone was not able to be rendered inoperable.

What does HR need to know about wiretapping? Under federal wiretapping laws, it is illegal to listen to or record conversations without the consent of the parties. Under the Electronic Communications Privacy Act (ECPA), 18 U.S.C.A. § 2510, there is a business exception that gives some latitude for employers to monitor employees in the workplace.  Also, if consent is obtained, the communication lawfully may be intercepted as long as there is a legal purpose.  Generally, employers can use video recording devices in any work location and do not need to disclose the existence of the cameras to employees.  However, it is advisable to post notice to employees that areas are subject to video monitoring.  Appropriate areas for monitoring include places where employees do not have a “reasonable expectation of privacy.”  Common work areas are fine, but employees have privacy protections when it comes to surveillance in bathrooms and locker rooms. Without consent, avoid audio tapping employees.

In addition, Florida wiretapping law is a “two party consent” law, and under FL Stat. 934, it is a crime (third degree felony) to intercept or record an oral or electronic communication in Florida unless all parties to the communication consent.  A recent headline: Florida Developer accused of wiretapping.  This is a complicated area, so make sure you understand the current limitations of workplace monitoring before you audio record an employee who is suspected of misconduct, without consent.  In the Wyman Gordon case, the HR department had good reason to start an investigation of the employee, but when they set up the motion-activated audio and video camera to record the employee, they put themselves at risk for local and federal law violations.

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