He may be a millionaire and a world-renowned hip-hop star with 17 Grammys and one hit record after another to his name, but the world learned this week that Shawn Carter, also known as Jay-Z, has to play by the same rules as anyone else when it comes to surveillance cameras. A camera in an elevator at New York City’s Standard Hotel recently caught Jay-Z under physical attack from his sister-in-law, musician Solange Knowles, who appeared on surveillance video punching and kicking the rap star.
The leaked video has spurred plenty of Internet chatter, and gave the likes of gossip website TMZ something new to speculate about. However, from a legal perspective, the incident raises some questions about how surveillance cameras can be used in private businesses like the Standard.
Should Solange have expected for her outburst to stay private just because she was in an elevator? The answer is most definitely no. “In a hotel room you have an expectation of privacy, but in a public area there is none,” Thomas Wassel, a partner at Cullen and Dykman, told CorpCounsel.com, explaining that elevators are considered public, and there are plenty of reasons, such as customer security, that businesses could use to justify installing cameras there.
The ability of businesses to tape customers and employees in their establishments, explained Wassel, may vary by jurisdiction. In New York, where the infamous incident took place, employees get a good amount of protection from the prying eyes of employers.
“It’s illegal for an employer to install any sort of surveillance cameras or any recording device in restroom, locker room or changing room for employees,” said Wassel. New York state law also says that if a company wants to put cameras in a changing area for customers or visitors, it is necessary to post a warning, so they know they are being watched.
In fact, posting warnings about surveillance cameras, although not a legal necessity everywhere, is probably a good call, according to Wassel. “I’d say you’re better off posting a notice, letting people know there are surveillance cameras throughout the workplace or in private areas,” he said. “Not only does it put people on notice but, in and of itself, it can act as a deterrent against theft or other illegal activity.”
Bill Nolan, managing partner of Barnes & Thornburg’s Columbus, Ohio, office and a member of the firm’s labor and employment law department, told CorpCounsel.com that there are plenty of gray areas when it comes to a reasonable expectation of privacy. There are cases where the answer seems obvious. Filming customers and employees using the bathroom, he explained, is not likely to pass muster in any court. On the other end of the scale, filming checkout counters in a grocerty store is common and accepted under the law. But can a company put surveillance cameras in an area where trucks load and unload goods? That answer is more ambiguous. “It’s certainly not private like a restroom, but it’s certainly not public like a supermarket,” Nolan said.
He explained that businesses should think carefully about their reasons for videotaping before throwing up cameras all over the place. “It’s a good practice for almost any employer, regardless of the law is, to think through their particular needs,” he said. ”Why do they need to videotape? And to develop some sort of program that’s consistent with that, and if you’re going to do it, have some policies, communications that say what you’re going to do.”
Nolan recommended communicating policies about filming employees through postings on premises or the employee handbook in order to fend off violation of privacy claims if they arise. “It’s hard to say you had an expectation of privacy when you were told you didn’t,” he noted.
If employees are caught doing something bad on camera, Patrick Dolan, partner in the labor and employment practice group at Hinshaw & Culbertson, told CorpCounsel.com that, granted the camera’s installation was legally legitimate, the employer can use the footage as proof of misconduct. “You should be able to use that information in any kind of disciplinary proceeding,” he said.
And if law enforcement gets involved with an incident that happened on a business’ premises, Dolan explained, it’s imperative that the business hand the footage over. If Jay-Z had wanted to press charges against Solange for assault, the hotel would have had to give the police the elevator video.
If video recording on premises is sometimes permissible, when is audio recording? “It’s an entirely different analysis,” said Dolan, explaining that the rules for audio are far more limited by the need for consent. It would have been interesting—at least for the sake of gossip—to hear what Solange was saying to Jay-Z. However, federal law and many state laws require that to take audio, at least one party needs to consent to being recorded. Some states even require multiple parties to consent.