Blogs August 2017

Question: How should we notify our employees that they are under video surveillance at work?

Answer: Generally, the use of surveillance in the workplace is contentious due to employees’ common law expectations of privacy. Address this issue by notifying your workforce that they should not expect privacy in specific, public areas where notice is posted that video surveillance is occurring. Employees should also be notified about the areas that will not be monitored; for instance, employees have a reasonable expectation of privacy in bathrooms, dressing areas, and medical examination offices. The key to this policy is its reasonableness. Courts are typically supportive of what they consider “reasonable” policies that monitor open and public work areas; however, targeting a single employee’s work area, for example, may be considered intrusive.

Your policy should also explain why the surveillance is necessary and its goals (to increase safety, reduce loss, etc.). The policy should outline consequences for inappropriate behavior or policy violations that are observed through surveillance and the circumstances under which footage may be used for performance management.

The policy should also contain a signed, dated statement indicating that the employee has read and understood the policy. A best practice also includes researching local or state laws applicable to your workplace where an employee may have a right to privacy and not be subjected to video surveillance.

We recommend reviewing any new or updated policy with legal counsel prior to publication. This review is particularly important when dealing with privacy issues, which can result in penalties and even jail time if handled inappropriately. Best practice is to draft the policy in conjunction with legal counsel to ensure enforceability.

The American Bar Association offers an informative article about the reasonable expectation of privacy.

Question: How much information should we provide when we receive calls to verify employment for a former employee? Should we just verify dates of employment? Title? Eligibility for rehire?

Answer: You are not required to provide information regarding a former employee when references are requested. Because of the risk of defamation claims, many employers have chosen to have policies in which only dates of employment and position are confirmed. Employers can encounter problems if the employee can prove that a statement was made with a reckless disregard for whether it was true or not true. In the employment setting, defamation claims primarily arise from the following two situations: 

1. Discussing an employee’s alleged poor performance, misconduct, or reasons for termination beyond those who need to know.  

2. Responses to reference checks.

You may avoid defamation claims if you acquire and apply a basic understanding of the law in this sensitive area and follow a few simple precautions. In regard to reference inquiries, that means limiting your reference checks responses to confirmation of dates of employment and positions held, and obtaining a signed release from an employee before releasing any salary history or other employment data.

You may also need to consider whether withholding information may put your organization at risk of negligent referral. Negligent referral in this context can be defined as the failure to disclose accurate information about a former employee that may have helped the new employer prevent an incident in the new workplace. If you are concerned with the potential of negligent referral, you should consult with legal counsel on whether information on a former employee should be disclosed.