Employers may have legitimate reasons for wanting to place employees under video surveillance, such as vulnerability to theft or sabotage, or even concern about safety.
Here we aim to assist you in finding a balance between protecting your legitimate interests and not invading your employees’ everincreasing rights to privacy.
Q: When can an employer use video surveillance to monitor employees?
A: Courts and arbitrators have focused on determining how the specific video surveillance was implemented and why, with the help of four considerations:
- Is the surveillance necessary for legitimate or reasonable business interests? Such interests include lossprevention and safety or security risks.
- Is the collected information limited to that necessary to the purpose? The scope of the surveillance will be deemed reasonable only if it is restricted to what is necessary to the expressed purpose.
- To what extent is the employee’s privacy affected? Surveillance for productivity issues, or where employees have a reasonable expectation of privacy, is usually held to be unreasonable unless there is a significant business interest at stake.
- Were effective alternatives considered? Video surveillance is a significant step, or even a last resort. If effective alternatives that are less invasive of privacy do exist, then it may be seen as unreasonable to use video surveillance. That said, an employer would not be required to use inefficient or very costly alternatives, provided the measure is reasonable and necessary.
Q: What about surreptitious surveillance by cameras whose locations and purposes are not known to the employees?
A: Varying standards exist regarding surreptitious video surveillance, and such surveillance should be reserved for certain situations, such as: where substantial evidence of wrongdoing already exists or where less invasive measures have already been exhausted. The decision for such surveillance should be made at a senior management level.
Tips for Employers
- Before implementing video surveillance, consider viable alternatives and maintain records that can be used as evidence if need be.
- If the video surveillance is to be open and with a business or security purpose: identify this purpose; make it known to employees; restrict the surveillance to that specific use; and be prepared to demonstrate its need.
- If the video surveillance is considered necessary, ensure that the surveillance is reasonable and that its intrusive effect on privacy is limited. Weigh the employees’ loss of privacy against the employer’s benefit, to ensure the proportionality of the measure.
- Review any relevant collective agreement for any stipulated restrictions.
- Since some arbitrators have required that an employer confront an employee with its suspicions, prior to video surveillance, consider whether confronting the employee is possible, or whether it would undermine your subsequent surveillance.
- Consider the various kinds of video surveillance equipment and choose the one most suitable, keeping in mind that admissibility in court depends on a videotape being a true and accurate reproduction.
- Consider contracting with a reputable investigation or security services provider to set up and maintain the surveillance system.
- Whether you hire a security services provider or do your own taping, know: who created the tape; who, if anyone, edited the tape; and that the tape has been securely maintained and un-tampered.
- Ensure that the video surveillance documents the acts in question, portraying them clearly, without bias or manipulation. A videotape whose prejudicial effect exceeds its probative value can be excluded from evidence.
- The videotapes should clearly mark the correct time and date when they were made and should not be edited for content or regarding time, lighting or continuity.
- Ensure that a witness will be available to testify that he or she knows when, where and under what circumstances the videotape was made, and that the tape is a fair and accurate reproduction. Ensure that only one person does the actual videotaping and that only one person (preferably the same person) maintains secure custody of the tapes.
- The individual conducting covert video surveillance of an employee should be prepared to respond if the employee discovers the surveillance, responding to questions briefly and honestly, i.e., that he or she is videotaping the employee’s activities; that he or she was asked to do so; and, if the employee demands to know by whom, by responding that he or she is not at liberty to say.