Installing surveillance cameras in the workplace: balancing between employees’ rights and employers’ legitimate security measures

A recent ruling by the National Labor Court establishes that placing cameras near an employee’s workstation does not necessarily constitute a substantial deterioration in working conditions.

In a previous client update, we informed you about a ruling by the Regional Labor Court that addressed the issue of installing cameras in the workplace.

The National Labor Court’s ruling constitutes a binding precedent, which prescribes criteria for balancing between employees’ right to privacy in the workplace and employers’ legitimate interests.

The National Labor Court ruled that installing surveillance cameras near work stations does not necessarily constitute a tangible adverse change in employment conditions, but rather depends on criteria that must be considered. The court ruled that a decisive determination by the Regional Court regarding the installation of surveillance cameras, without weighing the circumstances on their merits, is undesirable, since it could lead to a situation whereby any employee with a surveillance camera installed near him could resign, with his resignation being tantamount to dismissal – an extreme result that could deter employers from using legitimate security measures.

In what instances is it justified to install surveillance cameras in the workplace?

In its ruling, the National Labor Court prescribed various criteria in order to balance between employees’ right to privacy in the workplace and employers’ legitimate interests, which analyze the question: When does the installation of surveillance cameras in the workplace constitute a tangible adverse change in employment conditions to the extent that permits an employee to resign, with his resignation being tantamount to dismissal?

The criteria for ascertaining whether installing surveillance cameras constitutes an infringement of employees’ privacy address the following questions:

Legitimacy and appropriate purpose: Is the reason for installing the cameras legitimate per se? If the answer is no, then the employee is entitled to not only resign with his resignation being tantamount to dismissal, but also to sue for additional remedies. If the purpose is legitimate and it could not be effectively achieved by less intrusive means, then it is necessary to proceed to the next question;

The severity of the violation of the employees’ privacy: To what extent is the employees’ privacy being violated? In this regard, the principles of proportionality and relevance should be weighed against the reason for installing the cameras, how they were actually positioned (the angle of the camera, the resolution, the duration of the imaging), and the extent at which the photographic products are accessible in real time and retrospectively. When ascertaining the severity of the violation of privacy, the employees’ personal particulars, their roles and the employer’s conduct at the time it installed the cameras should also be considered.

The extent of the employees’ consent: What is the required extent of employee consent when installing surveillance cameras? If the violation of the employees’ privacy is considerable, then the employees’ explicit and voluntary consent should be received before turning on the cameras.

In the case at bar, the court ruled that the employer had legitimate motives for installing the surveillance cameras, the purpose of which was to document irregular events in the workplace, including preventing or documenting sexual harassment, if any. Nevertheless, the court ruled that the violation of the employee’s privacy was extreme, and she had expressed unequivocal opposition to their placement. In light of this, the court ruled that the installation of the surveillance cameras without her explicit consent constituted a tangible adverse change in her employment conditions which, under the circumstances, entitled her to resignation tantamount to dismissal and to severance pay.

The National Labor Court’s ruling follows an earlier ruling on employee privacy protection, which adopted the Privacy Protection Authority’s guidelines on the placement of surveillance cameras in workplaces. These guidelines state, inter alia, that employers should formulate a clear declarative policy on the placement of surveillance cameras and present them to their employees before turning on the cameras.

Considering the Privacy Protection Authority’s guidelines and the National Labor Court’s ruling, employers intending to install surveillance cameras in the workplace should act prudently and responsibly and consider their employees’ subjective right to privacy in their workplace.

Inter alia, employers should:

• Examine the necessity of installing surveillance cameras and the possibility of achieving their purpose in less intrusive ways.
• Examine the particular locations for installing surveillance cameras, their angles and resolution and the actual duration of the imaging, in order to avoid violating the privacy of any specific employee to the extent possible.
• Examine the extent at which the photographic products are accessible, whether in real time or retrospectively, who is authorized to view the photographs, and whether the access is consistent with the pre-declared purpose.
• Inform employees of the existence and locations of surveillance cameras in the workplace and about the reasons for their use. If necessary, hold a dialogue with the employees to hear their position before installing the cameras (especially when the installation of surveillance cameras could violate the employees’ privacy).
• If there is a risk of significant violation of employees’ privacy, such as if the cameras are installed close to their work stations or if they continuously capture images from their personal computer screens, then their explicit consent should be obtained in advance.
• Inform employees that they have a right to view the photographic products, subject to protecting the rights of other filmed employees (if any), in conformity with a clear procedure complying with the Privacy Protection Regulations and the Privacy Protection Authority’s guidelines.

We are at your service to answer any questions about workplace privacy or about preparing to install surveillance cameras in the workplace.

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Adv. Netta Bromberg is a partner and heads the firm’s labor law department.

Adv. Noemie Amar is an associate in the firm’s labor law department.

Dr. Avishay Klein is a partner and heads the firm’s privacy protection, data security and cybersecurity department.

Adv. Liav Shapira is a senior associate in the firm’s privacy protection, data security and cybersecurity department.