Can a non-governmental employer in the State of New York lawfully make a video recording of its employees in the workplace without the employees’ knowledge? The short answer is that a private employer in New York lawfully may engage in secret, video-only surveillance of its employees in certain areas of the workplace, unless the employer does so for impermissible reasons.
Employers in New York State are prohibited from causing a video recording to be made of employees in a restroom, locker room, or room designated by an employer for employees to change their clothes, unless authorized by court order. N.Y. Labor Law § 203-c(1). Consequently, absent a court order, an employer in New York should never install a surveillance camera in any of the above-mentioned areas in the workplace.
Further, section 250.05 of the New York Penal Law, captioned “Eavesdropping,” renders it a class E felony for any person, other than a law enforcement officer acting under an eavesdropping warrant or a video surveillance warrant issued by a court, to engage in, among other forms of surveillance, “mechanical overhearing of a conversation.” The same statute defines ” ‘mechanical overhearing of a conversation’ ” as “the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.” N.Y. Penal Law § 250.00.
Therefore, it is a felony for a business in New York surreptitiously to subject its employees, in the workplace, to any video surveillance which contains an audio component. It follows that, to avoid criminal liability, companies in New York which carry out video surveillance of their employees in the workplace must ensure that the video cameras will not capture the human voice.
Provided that the surveillance cameras are not located in a restroom, locker room, or room designated by the employer for employees to change their clothes, a non-governmental employer’s carrying out of secret, video-only surveillance of employees in the workplace in New York is lawful, unless the employer videotapes its employees so as to retaliate against them for engaging in protected activity.
Thus, in Clark v. Elam Sand & Gravel, Inc., 4 Misc. 3d 294, 777 N.Y.S.2d 624 (N.Y. Sup. Ct. Ontario County 2004), the Supreme Court of the State of New York, Ontario County, dismissing, for failure to state a cause of action, the plaintiff worker’s amended complaint, held that the defendant employer’s and the employer’s president’s “install[ation] and maint[enance] [of] video and telephone surveillance in the workplace without the [plaintiff] employee’s knowledge” did not give rise to a claim of either intentional infliction of emotional distress or negligent infliction of emotional distress. Clark, 4 Misc. 3d at 295-297. The Clark Court explained: “Although [the plaintiff worker] alleges that [the employer and its president] owed a duty to provide privacy in the workplace to [the worker], there simply is no such right in New York.” Id. at 296.
By contrast, in Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 746 F. Supp.2d 575 (S.D.N.Y. 2010), the jury, after a multi-week trial, found the defendant casino liable for retaliating against the plaintiff employee, for the employee’s numerous complaints about unlawful discrimination and harassment, by “installing a hidden camera above [the employee’s] work station, where it remained for eight days before co-workers found and disabled it.” Mendez, 746 F. Supp.2d at 580, 592. The U.S. District Court for the Southern District of New York, denying the casino’s motion for judgment in the casino’s favor notwithstanding the jury verdict, held that ”
surveillance can . . . be deemed an adverse employment action” under Title VII and the New York City Human Rights Law, and “reject[ed]” the casino’s contention that, as a matter of law, “the installation of a hidden surveillance camera to surveil an employee who has complained of discrimination can never be retaliatory.” Id. at 596-597.