It is common for employers to use video surveillance to prevent theft from the location or to monitor the actions of the employees while they are on the clock. These places of employment may use cameras throughout the store.
Courts are likely to uphold the store’s use of cameras so long as:
- The business has a legitimate need to film;
- The areas under surveillance are public; and
- Employees are aware they are being filmed.
It is important to note, however, that employers must be careful filming because it can violate privacy rights, especially if cameras are used in a dressing room, bathroom, or locker room. The majority of retail workers do not mind being under video surveillance to guard against theft.
For example, there may be cameras used to record who comes in the door or stands around the cash register.
Do Stores Install Cameras in Dressing Rooms?
As previously noted, many retail stores use cameras to monitor fitting rooms as a theft prevention measure. More and more stores are using cameras because of the improved technology and the availability of smaller and less expensive cameras.
In addition, two-way mirrors may be used in some stores for this purpose. It is important to note, however, that there is a difference between having a camera monitoring the outside of fitting rooms and having cameras in fitting rooms.
Why Is Video Surveillance Used by More than Half of Employers?
According to a survey conducted by the American Management Association, video surveillance is used by more than half of employers who responded to prevent violence, theft, and sabotage at work. The survey determined that about 16% of employers use video surveillance to monitor employee performance.
Whether or not filming employees at work is legal will depend on the state laws and the types of images that are captured.
What are Workplace Privacy Laws?
State legislators are very aware that most individuals hold privacy in high regard. Nearly every state has passed privacy laws.
These privacy laws are designed to protect consumers in numerous ways, such as, limiting how a company can use personal information or requiring a business to maintain the privacy of medical information or Social Security numbers.
Additionally, certain states have enacted laws governing workplace privacy, including laws that govern the use of video equipment and cameras.
What about Employee Activities and Privacy?
Even if a state does not have laws that specifically protect workplace privacy, employees cannot be sued while doing certain things at work, such as changing clothes or using the restroom. In a state where surveillance is not specifically prohibited or permitted, a court will determine whether an employee’s privacy has been violated by examining two competing interests.
These may include:
- The employer’s need to conduct surveillance; and
- The employee’s reasonable expectation of privacy.
If an employee goes to the restroom or gets undressed has a strong expectation of privacy. There are also other activities that may be off-limits for employer surveillance, such as union meetings.
There have been some courts that have ruled against an employee who challenged an employer’s surveillance or other activities while they were on leave for a medical condition or workers’ compensation injury. These types of cases often involved clear abuses of leave laws by the employee.
A court may rule differently if the employer’s surveillance strayed into a private activity and prevented an employee with a legitimate need for leave from exercising it. If an individual has questions regarding the legality of the surveillance policy at their place of employment or business, it may be helpful to consult with an attorney.
What about Monitoring Employees to Ensure Productivity?
The majority of companies use video surveillance with good intentions. When a store, especially a retailer, has a video camera near the entrance, management can easily observe who enters and leaves the store.
It may also be helpful to use cameras throughout the building. This is because individuals are less likely to steal merchandise if they know they are being watched.
This can also apply to employees. If areas are under surveillance, such as the cash register or back storage areas, there will be no way for an employee to steal merchandise from the store.
So long as the locations of the cameras are public and obvious to passersby, filming should not interfere with an individual’s privacy.
Is It Legal to Monitor a Dressing Room?
Whether or not security cameras in dressing rooms are legal will depend on what state a store is located in and whether the camera is recording or is a live feed. In certain states, it is legal to monitor the dressing rooms of a retail store using a camera or a two-way mirror.
In addition, for all intents and purposes, a live, non-recording camera is a modern equivalent to a two-way mirror. In other states, using cameras in dressing rooms is banned due to privacy concerns.
There are many states that have taken a middle ground approach. In these states, surveillance is allowed, even recording surveillance, but the store is required to post obvious and conspicuous notices to inform consumers that they are being monitored.
In all states, video monitoring in a sensitive area, such as a dressing room, for any purpose other than theft prevention is illegal. This type of conduct may fall under the laws that prohibit voyeurism.
Voyeurism is the act of observing an unsuspecting individual, typically a stranger, who may be naked or disrobing, for the purpose of seeking sexual excitement.
What States Allow Cameras in Dressing Rooms?
Individual states determine the regulations that govern workplace surveillance, in California, for example, there are laws that limit how an employer monitors employees.
The California Legislature has banned employers, except for the federal government, from recording changing rooms, locker rooms, or restrooms unless the recordings were required by court order. An individual can contact their state labor department for more information regarding their state’s workplace privacy laws.
It is a crime in California to install a surveillance mirror, or a mirror that can be seen through from only one side and looks like a mirror from the other. in a:
- Restroom;
- Shower;
- Fitting room; or
- Locker room.
Employers in the State of Connecticut are prohibited from operating surveillance equipment in areas designed for employee rest or comfort, including:
- Restrooms;
- Locker rooms; or
- Employee lounges.
Fitting room laws and regulations often overlap with privacy issues, employment issues, and criminal law. There are 13 states that prohibit dressing room surveillance without the express permission of the shopper, including:
- Alabama;
- Arkansas;
- California;
- Delaware;
- Georgia;
- Hawaii;
- Kansas;
- Maine;
- Michigan;
- Minnesota;
- New Hampshire;
- South Dakota; and
- Utah.
What if I Feel My Privacy Rights Have Been Violated?
As noted above, video surveillance of dressing rooms must be used only for the prevention of theft. The Video Voyeurism Prevention Act provides protections at the federal level, including protecting shoppers from:
- Voyeurism;
- Invasion of privacy; or
- Sexual exploitation.
Violators of this act may face imprisonment of not more than one year, criminal fines, or both.
Should I Contact a Lawyer?
If you believe that you have been videotaped for a purpose other than theft deterrence, you should consult with a personal injury lawyer immediately. Even if you were videotaped for apparent theft deterrent purposes, it may be helpful to consult with a lawyer to ensure your rights were not actually violated.
In certain states, the laws governing video surveillances may be unclear, out of date, or may not explicitly permit taping. In these situations, any type of video monitoring may be illegal.
Your attorney can advise you of the laws in your state and if the store videotaped you in violation of state laws. If this occurred, they may be subject to criminal charges.
In addition, you may be able to file a civil lawsuit and request damages for an invasion of privacy.
