Legal Smarts: “(Sometimes I Feel Like) Somebody’s Watching Me”

By Tracie Johnson Maurer

From electronic locks and restricted security codes to video surveillance, more companies are looking at ways to protect their assets. Both tangible and intangible belongings are protected in these days of tighter competition and economic survival of the fittest. Likewise, employers often implement surveillance techniques to limit opportunities for employee theft of time or services, as well as to ensure appropriate interactions with customers or visitors. Legitimate reasons notwithstanding, most states, including Georgia, have implemented restrictions on the use of “007”— like surveillance equipment in the workplace.

Under Georgia law, it is illegal for:

1. Any person in a clandestine manner intentionally to overhear, transmit, or record; or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place.

2. Any person, through the use of any instrument or apparatus, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of  public view.

Reading these provisions together, it is improper to record the “conversations” of another and, you cannot photograph (or videotape) the activities of another which occur in a “private place.” What is the impact of these statutory provisions on Georgia employers?

Employers may use surveillance techniques for legitimate business purposes as long as employees have been given notice they are subject to surveillance; the surveillance does not record sounds; and, the surveillance is not set up in private areas (e.g., bathroom stalls).

Whenever an employer intends to conduct video surveillance of its employees, the employer should provide prior notice to the employees. A surveillance policy should be contained in the company handbook and notices should be posted in conspicuous places alerting employees (and applicants, customers or other visitors) that they may be subject to video surveillance. Such notices will diminish an employee’s expectation of privacy and, where necessary, may strengthen an employer’s ability take adverse employment actions based on misconduct revealed by such surveillance.

Interestingly, the above statutory provisions do not apply to parties to a conversation. In other words, one party to a conversation may record that conversation even if the other party does not know his voice is being recorded. Thus, in Georgia, it is not unlawful for someone to record his or her own conversations, even if the recording party does not inform other persons that the conversation is being recorded. Although conversations between an employer and employee may be surreptitiously recorded, the question becomes, “Is it wise for employers to do so?”

Probably not. If it is determined that a discussion needs to be recorded, my recommendation is that everyone involved in the discussion be notified in advance that it will be recorded and that the employer be prepared to provide a legitimate business justification for the recording (i.e., recording needed to ensure accurate minutes of board meeting are taken). Trust and confidence work both ways in the employment relationship. If employers expect employees to be “above board” in their interactions with the company, then employers should promulgate the same standards for themselves.