Q: An employee in NY state had been using a personal "trail camera" to record other personnel on company property.

The surveillance equipment was owned and installed by an hourly employee on company property and hidden out of sight with no declaration of it's presence or intention. The camera had been in use for months to secretly record any and all persons, with no consent, making use of a well trafficked doorway where no other company-owned surveillance equipment was in use. This doorway served as access to parts storage rooms, maintenance personnel offices, and a machine shop.

Is this lawful surveillance?

Edited after answer.

With only the one employee having access to the camera storage media, there exists bias for any damage claims. Further investigation is required. Thank you for your assistance.

1 Lawyer Answer
V. Jonas Urba
V. Jonas Urba
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Answered
  • Employment Law Lawyer
  • New York, NY
  • Licensed in New York

A: Maybe? Are you part of management or do you own the company or the building?

A well trafficked area could be a restroom and that would certainly not be legal. We all have expectations of privacy there.

Analysis. Assuming you do not work for the government, did surveillance cause damage (usually financial) to the building owners, the company, or any employee? How do we know? Did anyone breach their duty of loyalty to the company? If you market and sell surveillance equipment at this business and the employee recorded anything which might be considered a trade secret or confidential or proprietary equipment or intellectual property that could certainly cause damage and affect the company's bottom line.

We need more information. Specifically about damages. The very first question any skilled lawyer wants to know is what are your damages? If someone set their cell phone down and recorded the entrance to your workplace would that cause damages? Maybe. If it recorded customers or clients who could be identified that could be a trade secret and even though the camera was at the entrance, and presumably public, it might not be ok to record customers which the company has worked years to get.

Unless we have more information about what was potentially recorded, how it might be used to cause someone financial or other injury, why would a court care? We are in New York and all of us who visit the city are recorded hundreds of times every day. Hopefully we are more controlled or reserved or serious at work so recording the workplace probably affects us less than when we are out in public where some of us might yell or curse at a driver who does not yield to pedestrians while we would not do that at work. So why would it matter, unless you can prove damages or injury of some type?

The entity or business / person who has the most standing or will be most interested in possible damage is the employer. What does the employer say? If they don't care why would you? That camera might be the best means for someone to prove a physical or offensive touching "MeToo" case today so if that person has been subjected to harassment those who have done the harassing probably should seek alternate employment very soon.

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