Some worker videotaping is legal.

Byline: On the Job by Bureau of Labor & Industries For The Register-Guard

Q: What are the rules on monitoring employees in the workplace? For example, would it be legal for me to videotape my employee work area to see what staff are talking about, to learn whether they are actually working or goofing off, or to determine if they are properly handling cash transactions at the till?

A: Many forms of monitoring in the workplace are legal, but you should proceed cautiously when considering videotaping in the workplace to avoid invasions of privacy and violations of the federal law regulating wiretapping.

At least two-thirds of companies use at least one form of electronic monitoring and surveillance, according to the American Management Association. Some companies even use software to track employees' computer keystrokes.

Regardless of the type of employee monitoring - be it videotaping, drug testing, searching work areas, tracking Internet use or reviewing voice mail and e-mail transmissions - it's a good idea to clearly explain your policy to workers.

When employees bring privacy claims in court, the key issue is often whether they have a "reasonable expectation of privacy" in their work areas. Courts generally have ruled that videotaping in common work areas does not violate employee privacy rights, especially when the employer can articulate a legitimate business reason for the monitoring and when employees are aware they are being videotaped.

Keep in mind that, while videotaping in the workplace may be legal, it's probably not going to do much for employee morale and may create a more adversarial relationship between employees and management.

Also, government employers are subject to a higher standard. Under the Fourth Amendment, federal government workers have protection against unreasonable search and seizure. These greater rights also extend to state government employees under the 14th Amendment. The U.S. Supreme Court has held that monitoring and searches in the public sector must meet a "reasonableness standard."

Juries have found that certain workplace monitoring, such as videotaping in company restrooms and locker rooms, sufficiently outrageous as to support a tort claim for "intentional infliction of emotional distress."

In January 1999, a jury awarded $20 million to four former employees of Wal-Mart in Kentucky. The store manager had secretly installed video cameras in the back of the store, and the four employees were discharged for stealing candy and nuts. The verdict against the employer was reached in part because the videotape included audio that contained very personal conversations of the employees, and in part because the jury found that the store had an unwritten policy permitting employees to eat damaged goods.

In an Alaska case, a court ruled that Safeway violated a manager's privacy rights by secretly videotaping him in his office. The store suspected this employee of violating its policy against taking gratuities from vendors and wanted to determine if he was accepting free fishing trips. The court ruled that the manager had a reasonable expectation that he would not be surreptitiously taped while in his office, especially since he could close his office door and be unobservable from the outside. Although the company had a known practice of videotaping cashiers suspected of theft, there was no notice that the company would secretly film a manager in his office.

In St. Louis, Union Pacific agreed to a six-figure settlement in an employee's invasion of privacy case after company investigators videotaped him at home to determine if his injury claim was valid. The employee was filmed while working on his heavily wooded, 80-acre property.

And this year, a federal court found that an employer violated the National Labor Relations Act by videotaping employees engaged in union organizing and protected activities such as distributing literature.

The Federal Wiretapping Act of 1968 and its amendment, the Electronic Communications Privacy Act of 1986, prohibit most audio surveillance in the workplace. One court held a manager liable under the federal wiretap law after he secretly tape-recorded workers' conversations during his absence and then used the contents of the recordings to terminate employees. Because of the federal law, employers who do videotape in the workplace should generally do so without audio recording. Some audio monitoring is legal with employee consent, such as monitoring of phone calls to rate customer service. However, an employer must stop audio monitoring as soon as it determines that an employee conversation is personal in nature.

On The Job is written by Dan Grinfas of the Oregon Bureau of Labor and Industries. The column answers questions about employment law. Contact BOLI at [phone], or BOLI, 800 NE Oregon St. No. 32, Portland, OR 97232.