Employee Surveillance – What Does The Law Say?
If you're considering or currently using any means to monitor your employees using GPS, cameras, technology, devices, apps or software you need to read this. In an increasingly Orwellian world, privacy is front and centre of everyone’s attention. For the most part, we trust in the legislature to protect us from unnecessary and intrusive incursions on our right to privacy, but in the workplace, tensions about increasing employer surveillance are bubbling to the surface. Several high-profile cases have arisen in the news recently. To name just a few examples, covert surveillance in nursing homes attempting to catch elder abuse and an insurance company demanding increased surveillance over work-cover claimants. Even if the intent of the surveillance is for good and valid reasons - such as trying to protect residents or provide footage for security - the correct legal procedures still need to be followed.
Technology moves faster than the Government:
It’s easy to see why employers are increasingly seeking to protect their assets, ensure compliance to their health and safety and protect the reputation of their business by maintaining surveillance over their business operations – including their employees. The law regulating this space is flawed, haphazard, and varies significantly from state to state. It doesn’t help, nor is it surprising, that technology moves significantly faster than a bill through Parliament. We are increasingly relying on ethics to navigate this space – from audio and video surveillance, GPS tracking, keylogging software, retina and fingerprint scanning.
As an employer, what are my rights and responsibilities?
If you're located in New South Wales, listen up, as the Workplace Surveillance Act 2005 (NSW) very clearly stipulates that an employer may NOT use surveillance cameras or other monitoring of employees without prior written notice. Written notice must be provided at least 14 days before surveillance activities may commence. The Act also applies to very specific types of surveillance, these being:
Camera surveillance, which is surveillance by means of a camera that monitors or records visual images of activities on premises or in any other place;
Computer surveillance, which is surveillance by means of software or other equipment that monitors or records the information input or output. This would include keylogging software, emails and internet usage; and
Tracking surveillance, which is surveillance by means of an electronic device to monitor geographical location or movement (GPS).
In the ACT, the Workplace Privacy Act 2011 (ACT) applies to optical devices, tracking devices and data surveillance devices, but not to listening devices. Employers in the ACT are required to consult with employees, in good faith, about their intention to conduct surveillance activities, and to provide very specific written notice to each employee about their surveillance activities. In both the ACT and NSW, covert surveillance is only permitted where an employer obtains a court order on the grounds that they reasonably believe an employee is engaged in illegal activity. Victoria provides some safeguards under the Surveillance Devices Act 1999 (Vic). In Victoria it is an offence to use an optical device or listening device in workplace toilets, bathrooms, change rooms or lactation rooms. In Queensland, the Invasion of Privacy Act 1971 (Qld) regulates surveillance generally. It makes it an offence to covertly record, monitor or listen to private conversations, but the Act does not specifically address surveillance in the workplace.
What is happening to make the law more consistent?
Unfortunately, there has not been much progress in recent years. The Australian Law Reform Commission is working on national uniform surveillance laws, but in the meantime many employers are illegally recording the movements of employees. The risks include, corporate fines of up $55,000 per breach, imprisonment and damage to corporate reputation. [tweet "Employers are illegally recording the movements of employees and face fines for doing so"] The first and most important point is that no surveillance should be conducted covertly.
What do I need to do if I want to implement surveillance in my business?
You must provide written notice to your employees, including new employees that you engage in surveillance activities. Your notice should specifically set out what types of surveillance you engage in, where you undertake surveillance and when surveillance occurs.
If specific rooms are recorded by video, such as the stock room, there should be a notice informing employees that they are being recorded.
If you use GSP tracking devices in vehicles, each vehicle should contain a prominent notice disclosing that the vehicle is being tracked.
Listening devices remain highly controversial, and to date, the court has overwhelmingly supported the right to privacy, so you should proceed with extreme caution here. The same rule generally applies – you may not covertly record private conversations. If you wish to use a listening device, we strongly recommend that you seek legal advice specific to your jurisdiction and circumstances.
You must at all times be transparent with regard to your surveillance activities. This means having a Surveillance Policy in place, ensuring that all employees understand their rights and obligations in relation to surveillance and ensuring that you are at all times adopting procedural fairness in relation to surveillance material.
What’S Next?
If you currently have any type of surveillance in your business and want to ensure you're legally compliant, book a call to discuss with the You Legal team, we will be happy to provide you with a proposal to assist.