Rich Meneghello, The Daily Record Newswire
Sometimes an employment lawyer is faced with a thorny question that involves multiple layers of analysis. Before advising a client, any good attorney wants to examine prior case decisions, statutory citations, regulatory guidance and other resources to ensure a full understanding of the issue at play. Then, in developing the advice, that attorney will probably ponder the question, consider all possible outcomes, weigh the possibilities and then provide the recommendation only after painful and precise deliberation. But at other times, the advice is so simple and straightforward that even a dummy can answer it.
A business owner in Virginia never gave an employment lawyer the opportunity to tell him that his planned strategy of installing security cameras in his businesses’ bathrooms was not wise. Now he is facing the consequences. Let’s examine this situation a little closer to understand what lessons that can be learned.
Dennis Smith owns Calabash Seafood Restaurant in Mechanicsville, Va. Smith said that for years his restaurant’s bathrooms have suffered vandalism, including urinals broken and torn from walls. He decided to install a security camera on the bathroom ceiling to be able to capture evidence of unwanted behavior.
Wouldn’t that be a gross invasion of privacy? Or an unwanted intrusion into sensitive behaviors? Or an illegal recording of someone while partially dressed or naked? Smith claims he thought of all of these things, so he pointed the hidden camera at the common area of the bathroom, capturing people when they entered and exited.
Smith, however, didn’t put up a sign or warn people that their activities were being monitored by security camera, and admits that people who chose to dress or undress in the common area of the bathroom were captured on video. He added that most of his customers who noticed the discrete object mounted on the ceiling figured it out and commended him on his actions, saying that he was well within his rights to do so.
One such customer did not agree, and took it upon himself to vandalize the camera in his own effort to fight back and protect his (and others’) privacy. In a delicious twist, Smith took the broken equipment and the footage of the vandal damaging his camera to the local authorities, hoping to press charges. It was only after Smith complained about the damage that the police learned of Smith’s secret bathroom surveillance, and at that time issued a search warrant and launched a criminal investigation into his conduct.
The District Attorney is now deciding whether to charge Smith with a misdemeanor crime. Even as a criminal investigation is under way, Smith is unrepentant. He was quoted in a local newspaper as saying, “Well, whoopee. It’s a misdemeanor. Are you kidding me? That would be a joke.”
When Smith was asked whether he thought any of his customers might not like the thought of the camera filming them in the bathroom, he responded, “If you don’t like it, you don’t have to eat here.”
While Smith’s attitude may be a breath of fresh air in this buttoned-down world of controlled corporate communications, his decision-making skills could certainly have used some redirection. If a client were to call me and ask me whether it would be OK to install a security camera in a company bathroom, I would not be able to say “No” quick enough. Besides the possible legal consequences of videotaping employees or customers while in various states of undress and while engaging in private conduct, business owners could face the real possibility of a civil lawsuit leading to a massive judgment for invasion of privacy.
The key legal element in these cases is whether employees and customers have a reasonable expectation of privacy in various parts of a place of business, and if so, it would be unlawful behavior to record them while they are in these locations. It goes without saying that people have a very reasonable expectation of privacy when they enter a business’ bathroom, and for that reason, video cameras are essentially an absolute no-no.
The same goes for any area of a business where employees or customers might be changing in and out of their clothes. These activities are so private that even a warning sign alerting people to the presence of a camera might not be enough to prevent civil and criminal liability.
But what about other business areas? If an employer believes it has a legitimate business interest to monitor activity in public areas, it may have a general right to record there.
The employer would first want to establish the legitimate business interest. Perhaps there has been a rash of thefts, or simply a valuable product that requires protection. Or maybe there has been a lull in productivity and employee actions need to be monitored. Or maybe the nature of the business leads to security or safety concerns.
Once that has been established, an employer should alert employees in no uncertain terms that they have no reasonable expectation of privacy in these areas, explicitly informing them of the presence of cameras. Signage is helpful, but a signed acknowledgment from employees should be a part of new-hire paperwork. Finally, limit surveillance to video, because audio recording raises a whole host of other legal concerns under state and federal wiretapping laws.
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Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.
