In the public sector, privacy law is a rather clear-cut issue. When it’s applied to corporate situations, such as monitoring employee performance on company property or during working hours, the matter isn't as favorable toward privacy. Although most states guarantee employees’ privacy in sensitive areas such as locker rooms or bathrooms, the overwhelming body of law doesn’t guarantee privacy to employees in common areas such as breakrooms or employee lounges.
An employee’s right to privacy in the workplace largely depends upon the situation of his employment, rather than the divisions that traditionally separate the public and private spheres. Employees have a reasonable expectation of privacy in areas that are devoted exclusively to their use and feature limited access from other employees. These rights may be waived if the employers notifies employees of potential intrusion or surveillance in those situations. Because employee breakrooms are common areas dedicated to shared use by all workers and access to these rooms isn’t limited, employees can’t claim a reasonable expectation of privacy in a breakroom.
Because workers can’t expect privacy in a common area such as a breakroom, employers are free to monitor the common area with video monitoring devices without violating privacy law. Although 48 percent of companies use video surveillance to deter theft, a mere 7 percent applied the technology to monitor the performance of their workers, according to a 2007 survey by the American Management Association, and 89 percent notified workers that they were being monitored by video.
Audio surveillance, or video surveillance that includes audio monitoring, is subject to much more legal scrutiny. Regardless of a party’s expectations of privacy rights, federal wiretapping and eavesdropping laws--USC Title 18, § 2510 (2 )--bar employers from taping conversations made by employees in the breakroom. While state laws allow businesses to use audio surveillance for business purposes, all parties must be given reasonable prior notification that they’ve waived their expectation of privacy in these situations.