Knowing what goes on in the workplace is a big part of being a good manager or employer. Obviously it’s important to pay attention to employee behavior to combat workplace misconduct, such as fraud or harassment. But keeping tabs on employees also helps you to assess the atmosphere, productivity and potential for improving efficiency and work conditions.

The key is to know the difference between workplace monitoring and spying on employees. The type, time and place of monitoring are all part of this distinction.

“On one hand there is a constitutional right to privacy. On the other, there is a right and duty for an employer to know what is going on in company property, especially during the time an employee is being paid,” says California employment attorney Randall Crane. “Speaking broadly, an employer can set up cameras, review company e-mail, check data stored on company computers, ask one employee to watch the conduct of another. So the real question is: what are the limits?”

Audio and Video Recording

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Employers who monitor telephone calls are subject to strict laws that vary by state, but that doesn’t mean wiretapping isn’t an effective way to keep tabs on work communications and track employee effectiveness.

“Wiretapping laws require consent,” says Ohio employment attorney Jonathan Hyman, a partner in the Labor & Employment Group at Kohrman Jackson & Krantz. “Therefore, employers cannot make recordings of telephone calls without consent. In single-party consent states, obtaining the employee’s consent is sufficient. In dual-consent states, however, the business must also inform the other party that the call may be monitored or recorded. The best practice is employee consent via a signed policy and notifying the other party as part of any phone call, to cover all bases,” he says.

Interestingly, video surveillance has fewer restrictions, and these are generally concerned with the audio element.

“There are no legal issues directly implicated by video recording, provided that the video surveillance does not offensively invade an employee's privacy,” says Hyman. “State and federal wiretap laws do not cover pure video surveillance. As long as the surveillance is video-only (no sound), employers are generally okay.”

Surveillance Outside the Office

There are areas where video surveillance makes sense and others where it is clearly inappropriate, say the experts.

“A secret camera which watches the company cash drawer is surveillance. A tracker surreptitiously attached to an employee's personal automobile is spying,” says Crane.

By observing employees outside the office, employers enter rocky territory, some of which requires legal advice, especially when the surveillance ends in some sort of employment action.

“Many terminations came after some incident at the company Christmas party or barbeque,” says Crane. “That is employer time where right to personal privacy is limited. But what about an arrest without a conviction, or just a criminal proceeding without a conviction? The rule seems to be that conduct which interferes with an employee’s ability to perform can be grounds for investigation and possible discipline, even if not the employee's fault. But an employer must not discriminate solely against an employee’s exercise of rights such as voting, religious practice, travel or the like,” he says.

Treading the Blurred Lines of Privacy

Many of the legal restrictions on an employer’s right to watch employees are just a matter of common sense. But sometimes the lines aren’t so clear.

“Can an employer put up cameras in the washroom? No! There is an expectation of complete privacy,” says Crane. “But what if employer suspects crimes are being committed in the washroom? That's a tough one with no clear single answer,” he says. “No one said being an employer was easy.”