It was a multimillion-dollar mistake. Employees discovered the camera. Sheraton first denied the surveillance, then claimed it was necessary to stop on-site drug dealing. But Sheraton never produced evidence of any illicit activity. The company recently settled out of court for a hefty sum.
"The thing that employers have to watch out for is thinking that just because they own the [electronic surveillance] system, they can do anything they want," says Lewis Maltby, director of the workplace rights office of the ACLU in Princeton, N.J. Sheraton's first mistake in dealing with its phantom drug problem was not exploring a less-intrusive solution first. "Where employers get into trouble is by doing something even though it isn't reasonable."
Nearly two-thirds of 906 companies surveyed by the American Management Association use one or more forms of electronic surveillance. Most use cameras to counter theft, violence or sabotage; to check phone numbers and call duration; and to record computer use. But more than half of those using electronic surveillance also tape phone conversations, review computer, e-mail and voicemail files, or videotape employee performance. "The practice tends to occur because the technology allows it," notes AMA director of management studies Eric Rolfe Greenberg. And monitoring in ignorance of the law can be a recipe for disaster.
Navigating the maze of federal and state monitoring laws only makes matters worse. "I'm not sure it's a developing area of the law," says Robert Ellis Smith, publisher of the monthly Privacy Journal. "It's a misunderstood area of the law." In addition to his newsletter, Smith offers a "Compilation of State & Federal Privacy Laws" (1997; $31; updated as necessary) to sort state-by-state through the rules governing access to arrest, bank and tax records, credit and prior employment information, and electronic surveillance. For example, each state has its own rules on whether and how many people must be informed of taping if a phone call is recorded, if it can be recorded at all. An interstate call can be a challenge.
Some basic themes need always be kept in mind. Anything private is out of bounds under federal and most state laws. The 1986 Electronic Communications Privacy Act prohibits electronic eavesdropping even on on-the-job conversations of a private nature. Video surveillance is off-limits except where illegal activity, or activity contrary to explicit company policy, is strongly suspected.
There is no law defining "reasonable", yet that is the standard routinely applied by courts when deciding surveillance disputes. "Is someone selling heroin in the bathroom or are they just writing on the wall?" Maltby asks; i.e., what is a proportionate response to the alleged offense? Most courts grant employers the benefit of the doubt as long as they can prove their surveillance efforts met the "reasonableness" bar.
Don't jump the gun on surveillance, either due to rumors or curiosity. You have an obligation to investigate rumors that might lead to surveillance, not simply plug in a camera so you can watch. "Whether it's legal can't depend on luck," Maltby notes.