1. Workplace monitoring in general:
Generally speaking, employee monitoring is a very widespread practice, used, to some degree, by most of companies. Employers are entitled to monitor almost everything employees do at work as long as the reason for monitoring is important enough to the business.
This note focuses on ongoing, routine, monitoring of employees. Short term monitoring, to address a particular problem, will be covered in a separate note.
Recording by video monitoring and phone recording is often used as a security measure or as a way to train, check attendance, or evaluate employee performance.
However, with wide spread on-the-job usage of mobile phones and computers, old monitoring methods, including video recording, may not produce desired results.
For example, a video recording may show employees working diligently at their computer when in reality they are on social media or otherwise improperly using their computer. Tracking computer activity is necessary to understand what the employee is actually doing behind his or her screen during work hours.
But the question of any type of monitoring, whether by video or phone or computer activity tracking, requires a delicate balancing exercise between, on one hand, your business needs (security, employee productivity, regulatory compliance) and, on the other hand, your employee’s reasonable expectation of privacy in the workplace.
Indeed, it’s important to remember that, despite how comparably pressing your business needs are, your employee’s reasonable expectation of privacy in the work place is a very real thing, recognized by the courts.
Take for example, a fairly recent decision by the Grand Chamber of the European Court of Human Rights (ECHR). In this case, even though the employee was inappropriately using an online messaging platform set up for work related correspondence for personal matters (which was strictly prohibited by his employer leading to his firing), because the employee was not notified that the content of his communications could be monitored, the ECHR held that the employee’s right to private life and correspondence under the European Convention on Human Rights had been infringed, and that a fair balance between the employer’s interests and respect for the employee’s private life had not been struck.
With this in mind, it’s important to establish, and clearly communicate, a policy on how your employees are being monitored. This approach should also address how you are accessing and processing your employee’s personal data. An impact assessment exercise will be particularly helpful in considering whether a specific monitoring measure can be justified.
General guidance may be found in the UK’s Information Commissioner’s Office (ICO) which sets out some best practices as to how employers should monitor their employees’ communications. According to the ICO:
- It’s good practice to inform employees of any policies in place on electronic communications and is especially good practice to inform employees when monitoring is taking place to enforce that policy, as well as the purpose and extent of the monitoring;
- The number of people having access to the information that is being collected about employees should be kept to a strict minimum;
- Employers should not access the content of messages which are clearly marked as private or personal.
2. Monitoring by using video
In this context, video recording also refers to closed circuit TV systems or similar technologies.
The underlining principle is the same as for any routine work place monitoring: In order for an employer to legally videotape his employee in the workplace, there must be a legitimate business reason to do so.
It is quite common for retail stores, banks, restaurants and other public facing business to use video surveillance in locations where security or theft-prevention is important. But, while it is fair to say that an employee working behind the counter at a jewelry store has no reasonable expectation of privacy, employees who work in cubicles probably expect some level of privacy. Indeed, employers may have a difficult time justifying video recording employees who only interact with other employees at the workplace.
That said, even office-based video recording may be justified, including for security purposes, time and motion studies, or other investigative processes and health and safety compliance purposes.
However, video recordings in areas where employees have a reasonable expectation of privacy, like locker rooms or bathrooms, is always prohibited.
Some regulations make a distinction between monitoring done by clearly visible cameras or through hidden ones: For example, if the recording is done by visible cameras, US federal law seems to allow videotaping of individuals in the workplace, even without their consent or knowledge, as long as it is not done to commit a crime.
Meanwhile, where the recording is done by hidden cameras (like a pinhole camera), courts expect employers to clearly demonstrate that the surveillance is for a legitimate business reason. In this context, saying you’re recording for “security reasons,” may not be enough. Indeed, in places where employees are unaware of video surveillance, their reasonable expectation of privacy may be heightened so it’s prudent to display a notice of hidden cameras in the workplace. This also applies to domestic settings and monitoring of work done by domestic workers.
3. To recap: Tips to be compliant when monitoring your employees:
- Set clear monitoring policies – outline methods used, when monitoring is taking place, etc;
- Notify your employees of your policies;
- Block undesired content;
- Do monitoring, not a surveillance;
- Respect employee privacy;
- Use dedicated software.
So, may I legally video-record my employee at workplace? Generally, yes.
That said, you should then carry out a thorough impact assessment, taking into account the purpose for the monitoring, identifying the adverse impact on your employees and their expectations of privacy in certain contexts, consider the alternatives, take into account your obligations as an employer, and consider whether the monitoring is justified.
HOW WE CAN HELP?
The Consultant Team of MLS Company Secretary can help you with:
- Reviewing policies and procedures.
- Drafting your Data Processing Agreement
- Reviewing existing contracts Staff training
- Identify operation vs legal questions and gather competitive fees estimates for legal advice if necessary
Hélène Canard-Duchêne (Singapore)
+65 9396 9193
Maëva Slotine (Hong Kong)
 Barbulescu vs Romania (Application no. 61496/08)  ECHR 742
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice.