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Workplace Surveillance and Investigations

Two articles in The New York Times today prompt consideration of the appropriate place for surveillance in the workplace. See “Unblinking Eyes Track Employees” and “American Apparel Ousts Its Founder, Dov Charney, Over Nude Photos“.

Employers must strike the proper balance between an employee’s privacy interest and the employer’s interest in monitoring activity in the workplace. As a legal matter, so long as they give appropriate notice of their intentions and stay away from such intrinsically private places as restrooms, employers are free to monitor all conduct in the workplace. See, for example, TBG Ins. Services Corp. v. Superior Court, 96 Cal. App. 4th 443, 117 Cal. Rptr. 2d 155 (2002) (employer entitled to search employee’s home computer because the employee had acknowledged the employer’s policy allowing such access). For one of the restraints on the right to intrude, see Loder v. City of Glendale, 14 Cal. 4th 846, 59 Cal. Rptr. 2d 696, 927 P.2d 1200 (1997) (although applicants may be forced to submit to drug testing, existing employees may not in the absence of extenuating circumstances).

The “unblinking eyes” article discusses monitoring software that has helped businesses by identifying activities that make employees productive, but points out that, without some assurance of privacy, the surveillance may not be effective.

The article on the ouster of American Apparel’s founder shows the importance of being able to investigate employee behavior, even at the highest levels of an organization. If there is not enough monitoring to ferret out harassing behavior, the entire organization may suffer irreparably.