LKLSG L&E Attorney Jezebel P. Lima answered questions that she often hears from clients. In the field of labor and employment law, these concerns often arise, especially as technology progresses.
What do business owners and managers need to know before surveilling their own employees to prevent internal theft or monitor productivity? When using video surveillance, computer monitoring software or fleet tracking tech to watch employee activity, how far are employers allowed to go as far as the law goes? Ethically speaking, how should business owners conduct themselves in this regard and how much should they tell their employees?
Lima:
As an initial matter, Florida business owners and managers should know that section 934.03, Florida Statutes makes it unlawful to intercept and disclose oral communications without the prior consent of the parties. Not only is a violation of this statute a criminal offense, but an aggrieved employee may try to seek civil remedies pursuant to section 934.10, Florida Statutes. On the other hand, however, Florida courts have ruled that an oral communication is protected under section 934.03 only if there is a “reasonable expectation of privacy.” A reasonable expectation of privacy is based upon (1) one’s actual subjective expectation of privacy; as well as (2) whether society is prepared to recognize this expectation as reasonable. Some Florida courts have ruled that society does not generally recognize a reasonable expectation of privacy in a business office.
To ensure they do not run afoul of Florida law, Florida business owners and managers should disclose to their employees that they are videotaping the premises. They should do this by placing the cameras in plain sight (not hidden), put up signage indicating that the premises are videotaped, including language in their employee handbooks that the premises are videotaped and that they should not have a reasonable expectation of privacy at work, and if possible, having the employees sign an acknowledgement form that the premises are videotaped.
The cameras should be kept in common areas and not in areas where the employee would reasonably have a reasonable expectation of privacy such as the restroom or locker room.
