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Privacy Law Resources |
The Supreme Court first recognised a right of personal privacy in 1891100, which has at various times since been related to the First, Fourth, Fifth, and Fourteenth Amendments to the US Constitution. This implied constitutional protection for privacy has been extended firstly to limit government regulation which impinges on an individual's right to autonomous decision making on certain issues, and secondly to prevent the disclosure of personal matters. Privacy interests of employees are also affected at the federal and state level by constitutions, statutes, court decisions, administrative bodies, arbitration decisions under contracts, and common law causes of action.
The US Constitution may protect employee privacy in a range of situations where video surveillance is conducted. The collection and disclosure of information by employers may impinge on the First Amendment protection related to freedom of religion, speech, press, assembly and petition. The Fourth Amendment right to protection from unreasonable search and seizures is also relevant to video surveillance.101 The Fourteenth Amendment gives employees a right to a fair hearing and due process. Public sector employees have greater protections because these constitutional provisions relate to protection from "state action", although in some situations these rights may be applicable to some private sector employees.
The Supreme Court has established that there is a reasonable expectation of privacy for public sector employees, which must be balanced against the employers' need for supervision, control, and efficient operation of its workplace. This right has been established under the Fourth Amendment protection against search and seizure. In the 1987 case of O'Connor -v- Ortega102 the court found that public sector employees have a "reasonable expectation" of privacy in the workplace, but security measures which intrude on privacy such as physical searches are permitted, provided they are reasonable. The test of reasonableness is based on whether there are reasonable grounds for suspicion that a search will uncover evidence that the employee is guilty of work-related misconduct.
Common law causes of action based on tort law may also provide employees with privacy protection. While tort theory varies between states, five major common law actions have been developed: invasion of privacy, intrusion upon seclusion, publicity given to one's private life, publicity placing a person in a false light, and intentional infliction of emotional distress. Unreasonable surveillance has been found to constitute both an invasion of privacy and an intrusion upon seclusion.
Statutory provisions may also influence the conduct of video surveillance. The Privacy Act of 1974 applies to files generated by electronic monitoring in public agencies at the federal level. Video surveillance recordings are included in this definition as a record is defined as any item or information which contains something which can particularly identify an individual. A limited range of data protection principles apply to the collection, storage and use of the recordings.
The National Labor Relations Act relates to disputes over private sector working conditions, and limits the use of surveillance for purposes which may interfere with employees' rights under labour laws such as conducting video surveillance of individuals involved in union activities such as picketing a workplace.103 Determinations from the National Labor Relations Board cover the organised labour section of the workforce. Some states have also enacted statutory prohibitions on specific uses of surveillance such as covert surveillance, monitoring individual employee performance and use of surveillance cameras in toilets, locker rooms and lounges.104
A range of federal legislative proposals to limit employee monitoring have been introduced into Congress but not carried, including most recently the Privacy for Consumers and Workers Act 1993,105 Under that legislation, employees would have been excluded from workplace monitoring if they had worked for five years or more with an employer. Certain situations may have exempted employers from the notification and privacy protection provisions of the Bill, such as if there was a reasonable suspicion that the employee was engaged in unlawful conduct or gross misconduct, or surveillance would have adversely affected the interests of the employer interests or of employees.
This Act would have made it necessary to notify workers of the conduct of electronic monitoring, provide access to data which has been collected electronically, and would have outlawed evaluation of employees based solely on data collected by electronic means.
Surveys in the United States consistently demonstrate a high level of public and even corporate awareness of privacy issues. A survey of businesses recently showed that 61.3% of firms disagreed with the statement that an organisation has a right to engage in video camera surveillance to monitor employees'' activities, with 38.1% registering strong disagreement, and only 10.8% registering strong agreement.106