Important issues to know about workplace surveillance
Businesses may have audio surveillance and video surveillance in the workplace but it depends where those cameras are located and their purpose. Electronic surveillance of the workplace can be tremendously beneficial for a business as to both employees and customers. Business owners engaging in such workplace surveillance are wise to openly display their cameras or place a sign in a prominent location indicating that cameras exist on the premises. They are also smart if they have employees acknowledge the existence of the cameras in some writing like their employee handbook.
Security cameras in a business may also be capable of recording and storing video and sound. Because of the robust capabilities that these relatively low cost devices now offer the business should familiarize itself with the applicable law and the obligations that the business may have to preserve the data that those devices create and capture.
Security cameras in a business may also be capable of recording and storing video and sound. Because of the robust capabilities that these relatively low cost devices now offer the business should familiarize itself with the applicable law and the obligations that the business may have to preserve the data that those devices create and capture.
Does a business owner have a legal obligation to put cameras in the business
No, there is no legal requirement that a business in Florida have a CCTV or security camera except for check cashing businesses. Section 560.309(6) in the Florida Statutes requires that all licensed check cashing businesses must have a security camera system capable of recording and retrieving images. But, that is not required if the business has a bulletproof or bullet-resistant partition where the checks are cashed.
That aside given the relatively inexpensive cost of purchasing, installing, and maintaining a security camera system balanced against the benefits that they provide the real question is why would a business not want to install some form of security camera or surveillance system in its business premises.
That aside given the relatively inexpensive cost of purchasing, installing, and maintaining a security camera system balanced against the benefits that they provide the real question is why would a business not want to install some form of security camera or surveillance system in its business premises.
What are the benefits of a security camera in a business
A security camera system in a business can protect both the business and its customers. The business can monitor its employees and customers through that system. Likewise, if a customer is injured in or claims an injury in the business premises then the video will be extremely useful to the business and the customer in that claim.
A person who enters a business is deemed a business invitee or called a business visitor. The business owes certain limited duties to such business invitees but those duties are not as broad as if the premises were a government building and does not extend to ensuring the absolute safety of the customer from all possible threats. Generally businesses have no duty to protect customers from unforeseeable criminal acts perpetrated by third parties but because businesses have limited duties to provide a hazard free environment if the business is aware of the threat in advance then the business may be liable if it does not act.
A person who enters a business is deemed a business invitee or called a business visitor. The business owes certain limited duties to such business invitees but those duties are not as broad as if the premises were a government building and does not extend to ensuring the absolute safety of the customer from all possible threats. Generally businesses have no duty to protect customers from unforeseeable criminal acts perpetrated by third parties but because businesses have limited duties to provide a hazard free environment if the business is aware of the threat in advance then the business may be liable if it does not act.
The duties that Florida businesses owe to their customers
Businesses in Florida owe two duties to customers or business invitees. The first is the duty to warn of concealed dangers that are or should be known to the business owner and that are unknown to the business invitee and cannot be discovered through due care. The second duty that businesses owe their customers under Florida law is the duty to maintain the business premises in a reasonably safe condition.
How surveillance cameras help a business meet its duties to customers
Cameras in the business premises support both of the duties owed to business invitees in that they can capture and record or preserve the moments leading up to when a customer is injured and they show what happened beforehand that led to the injury that the business invitee suffered. It is equally important to recognize that these recordings are material evidence in claims involving the business. Therefore the business has an affirmative duty to maintain the security camera recordings for some period of time. Please refer to my article for a greater explanation on what data your business has to keep under Florida law.
Your obligations to preserve video surveillance data
To further protect the business it is wise for it to have a written data deletion protocol in place that the business actually follows. Failure to preserve certain data such as security camera footage may result in spoliation claims and sanctions by a court. But those penalties can be avoided if the business manages the data in accordance with its own data preservation protocol thereby taking advantage of what is called the safe harbor as it relates to preservation of electronically stored information.
Who should the business notify about its security cameras
If a business leases its premises then the terms of the lease may dictate whether the business is required to obtain approval from the landlord before installing any security system. The lease may also indicate whether the landlord has restricted video surveillance systems or whether a security camera system or parts of it may become the property of the landlord at the conclusion of the lease depending on how it is installed. Also because wiring or other adjustments may be required to the rented space the business may have to obtain the advanced approval of the landlord because the system may have to be installed by a licensed contractor.
A business ordinarily has two distinct areas within its business premises. One may be for use by or accessible to the general public and the other would be only for employees. Where security cameras are placed impacts to whom notice of those cameras may have to or should be given.
A business ordinarily has two distinct areas within its business premises. One may be for use by or accessible to the general public and the other would be only for employees. Where security cameras are placed impacts to whom notice of those cameras may have to or should be given.
Are signs required saying video surveillance on premises
A business that installs or maintains security cameras in its business premises where the public is invited into the business should consider displaying a sign advising its customers that cameras are present or that the customers are being recorded. Likewise if a business installs cameras in areas used only by employees then the business should at least advise the employees in a written document of the existence of such cameras. But even in employee only areas of a business there may be locations where an employee has a reasonable expectation of privacy thus the placement of the cameras is the most significant factor in determining their legality and impacts whether notice should be given and in what form.
While the business in every instance may not be legally obligated to notify its customers or employees of cameras there are advantages to so doing. Disclosing the existence of cameras may allow the business to later avoid having to prove that the cameras were open and obvious so that the customer or employee had no reasonable expectation of privacy upon entering or working in the business. Section 810.145 in Florida’s criminal statutes declares that video voyeurism is illegal and provides penalties for violating that Section. But subpart (5)(b) expressly excepts security systems where a written notice is conspicuously posted stating that the video surveillance system has been installed for security for the premises and subpart (5)(c) renders video surveillance devices that are clearly and immediately obvious a second exception to the law. By disclosing the existence of its cameras the business will have less to prove and the less a business needs to prove the more chance for it to prevail in invasion of privacy-type claims.
While the business in every instance may not be legally obligated to notify its customers or employees of cameras there are advantages to so doing. Disclosing the existence of cameras may allow the business to later avoid having to prove that the cameras were open and obvious so that the customer or employee had no reasonable expectation of privacy upon entering or working in the business. Section 810.145 in Florida’s criminal statutes declares that video voyeurism is illegal and provides penalties for violating that Section. But subpart (5)(b) expressly excepts security systems where a written notice is conspicuously posted stating that the video surveillance system has been installed for security for the premises and subpart (5)(c) renders video surveillance devices that are clearly and immediately obvious a second exception to the law. By disclosing the existence of its cameras the business will have less to prove and the less a business needs to prove the more chance for it to prevail in invasion of privacy-type claims.
Can video cameras record sound in a business
Yes, security cameras in a business premises can also record sound if there is no reasonable expectation of privacy. If a customer or employee as a reasonable expectation of privacy, such as in a bathroom in the business premises, then recording images or sound without the knowledge or consent of the customer or employee would be illegal and would violate the legal rights of that person. But if a customer or employee has no reasonable expectation of privacy either because the business displayed a sign informing the customer of the existence of the cameras capable of recording images and sound or they are obvious to the naked eye then the customer or employee can have no reasonable expectation of privacy. Likewise if the business disclosed that it has cameras that are capable of recording images and sound and an employee acknowledged the disclosure in writing then the employee can have no reasonable expectation of privacy.
Is consent required to record audio with CCTV cameras
Florida like most states has prohibitions on making audio recordings of someone without their consent but those restrictions are inapplicable where there is no reasonable expectation of privacy. As an example a few years ago a cell phone store in Hillsborough County suspected an employee of stealing money. The employer confronted the employee during normal work hours on the sales floor and the employee admitted to the theft. The employer then reported the employee to the police and she was charged and prosecuted for grand theft. The employee tried to suppress the audio recording of her conversation with her employer that was captured by the video surveillance camera in the store but the court in State v. Caraballo ruled against her holding that she had no legitimate reasonable expectation of privacy. The court reasoned that the store had a sign indicating that there was 24-hour video and audio surveillance in the premises and because the cameras were clearly visible and not hidden. The court also based its decision on the fact that the employee was aware of the cameras in the shop. Whether recording of audio or video is proper or whether it can later be used in a later legal action thus depends then on whether there is a reasonable expectation of privacy but that expectation generally does not extend to a business premises under Florida law.
Does the expectation of privacy impact any of this
One factor that may also impact whether the customer or employee had a reasonable expectation of privacy is the stated intent of the business in using such security cameras. Generally speaking workplace surveillance is not afforded the same degree of protection as a private home but hidden cameras, for example, in a business that serve no legitimate business purpose may be an objectively unreasonable privacy intrusion that creates liability for the business. A business that has its attorney prepare a proper written data preservation protocol can easily address the intent and purpose of its video surveillance system in that document thereby insulating itself against future unreasonable intrusion and spoliation claims.
Conclusions on workplace surveillance by a business in Florida
As with many electronic devices the cost of surveillance cameras has come down significantly in recent years. Likewise the capabilities of those devices to record high definition images and clear audio and to store enormous amounts of data have increased exponentially. Whether a business should have video cameras in its business premises is purely a business decision. But not having such surveillance devices may leave the business unable to more effectively defend claims of injury in the business or may even make the business a target for unscrupulous individuals who may falsify an injury claim for money knowing there is no video to refute their claim.
One business known to the Firm that chose to install fake security cameras to create the appearance of surveillance without the expense had to pay several thousand dollars to a customer who claimed that she tripped over an item and broke her toe. The cost of defending that claim exceeded the cost of settling it but the amount that the business paid in settlement far exceeded the cost of an actual video surveillance system. If the business had invested in a real video camera system it would have captured the incident and proved whether the injury actually occurred on the business premises or whether it was the fault of the customer.
When a business decides in favor of a video surveillance system it should ensure that the placement of its cameras do not violate any reasonable expectation of privacy. By displaying an appropriate sign regarding the surveillance system, ensuring that the cameras are openly visible, and that employees are aware of and acknowledge their existence the business can guard against invasion of privacy claims and create data from the cameras that are useful to the business.
One business known to the Firm that chose to install fake security cameras to create the appearance of surveillance without the expense had to pay several thousand dollars to a customer who claimed that she tripped over an item and broke her toe. The cost of defending that claim exceeded the cost of settling it but the amount that the business paid in settlement far exceeded the cost of an actual video surveillance system. If the business had invested in a real video camera system it would have captured the incident and proved whether the injury actually occurred on the business premises or whether it was the fault of the customer.
When a business decides in favor of a video surveillance system it should ensure that the placement of its cameras do not violate any reasonable expectation of privacy. By displaying an appropriate sign regarding the surveillance system, ensuring that the cameras are openly visible, and that employees are aware of and acknowledge their existence the business can guard against invasion of privacy claims and create data from the cameras that are useful to the business.
Written by expert business lawyer David Steinfeld
David Steinfeld is one of the few Board Certified business law experts in Florida. He has been licensed for almost 30 years. He is AV-Preeminent rated, ranked as one of the Best Lawyers in America by U.S. News and World Report, and consistently named a Florida Super Lawyer and one of Florida’s Legal Elite. Dave has also received Martindale’s prestigious Judicial Edition Award for high reviews by Judges, its Platinum Client Champion Award and has a 10.0-Superb rating on AVVO as well as a 10.0 rating on Justia, lawyer reviews websites.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
