Workplace videotaping

by DIANNE GLASSCOE WATTERSON, RDH, BS, MBA

Dear Dianne,

I have been working in the same practice for 19 years, and three other hygienists work there too. Recently, video cameras were installed in all four of the hygiene operatories, as well as two cameras at the business desk. We were not given any explanation on why the cameras were installed.

The cameras make me feel uncomfortable for a number of reasons. First, I keep wondering why the doctors feel the need to keep an eye on us. I also wonder if this kind of surveillance is legal. I'm a very honest person and would never take so much as a toothbrush without first asking. Ever since the cameras were installed, morale has plummeted. We all feel that, in a roundabout way, we are being accused of theft or possibly some inappropriate behavior.

The doctors have never been open with us concerning the business. We do not have staff meetings, and I don't feel that I can ask what this is all about without looking guilty -- which I am not! A few patients have asked about the cameras, but most people do not notice them, as they are mounted on the wall behind the patient's head. But, for the patients who have asked, I really don't know what to say. It's embarrassing when patients do notice and mention it.

Is the use of video cameras like this legal? Do you think I'm making much ado about nothing?

Colorado RDH

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Dear Colorado,

It appears that there is a complete lack of communication between staff members and management where you work. The fact that you don't feel the freedom to even ask why the cameras were installed suggests to me that intimidation is alive and well in the practice. Thinking back over my entire clinical career, I can't imagine working in an office where I couldn't ask a simple question like, "Hey, what's up with the video cameras?"

Your question of legality prompted me to do some research. One of the most trusted sources of accurate human resource information is Bent Ericksen and Associates. Tim Twigg, who is president of the company, provided these insights:

In general, the issues that you have raised land into three different categories: 1) security related, 2) HIPAA/patient related, and 3) employee-employer related.

Although it can vary from state-to-state, use of surveillance video and/or cameras for security purposes, does not require permission of the person(s) as long as there is no audio. Typically, if there is audio, then permission is required.

Relative to HIPAA, any recording and/or dissemination of patient information requires patient permission. So the scenario you described would potentially represent HIPAA violations, if there is audio and the patient has not been informed or provided signed consent.

Regarding employee-employer relations, again if audio recording is going to take place, regardless of the reason (malpractice protection, embezzlement control, standards of care training, verbal skill development, etc.), then the person(s) being recorded must be informed beforehand, be given the choice to continue or not, and/or sign an agreement authorizing permission for the recording.

Employers should not coerce, pressure, or otherwise lead employees to believe that by not giving permission to record will result in disciplinary consequences.

common at the business desk where cash is received from patients in payment for dentistry. While I suppose it is possible, I can't imagine that theft from hygiene operatories would be problematic.

Security cameras can also detect when staff members are engaged in inappropriate activities, such as playing video games or texting during work hours. Some offices have removed games completely from their office computers to eliminate the temptation. If a staff member is determined to text during working hours, she could move to a non-camera area to do so. There is usually a way to beat the system if a staff member is so inclined.

As Tim stated, audiotaping is prohibited without the consent of the individuals being taped. Audiotaping is used as a training tool for teaching particular verbal skills. Some companies provide "mystery patient" services, where an agent will make a call to a dental practice and pretend to be a new patient seeking an appointment. The conversation is audio taped and then critiqued as a part of a training exercise in teaching verbal skills to business assistants. However, for this to be done legally, the employee must be aware that she is being taped.

A hygienist recently shared with me that her boss asked her to sign a paper granting permission for audio taping to occur in her operatory. Evidently, he wanted to monitor her conversations with patients. However, according to Tim Twigg, the patient must be informed and consent to the audio taping as well, or else the practice is in violation of HIPAA. Further, if the hygienist refuses to grant permission, the employer would be in violation of labor laws if he threatens dismissal.

Audio recording without the consent of the parties is called electronic eavesdropping. The Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act, commonly lumped together as the Electronic Communications Privacy Act ("ECPA"), are federal laws that prohibit certain types of electronic eavesdropping. The law applies to traditional telephone wiretaps, cordless telephone interceptions, electronic messages, voicemail systems, pagers, chat logs, web-streaming video, voice over IP, and recording or videotaping private face-to-face conversations. The first and most basic principle underlying this law is the concept of a "justifiable expectation of privacy." It could be argued that a justifiable expectation of privacy includes conversations that happen within the walls of a treatment area, especially when conversations are of a sensitive nature.

If an employer feels that his staff members are not using the appropriate verbiage in patient conversations, verbal skills training would be helpful. Videotaping without audio would not be helpful to determine if verbal skills are lacking. To videotape employees just for the sake of having them feel they are being watched is damaging to office morale. Without asking directly, all you can do is speculate why the cameras have been installed. I like the truth. I would ask. I would also ask what should I say when patients ask.

It is easy to understand why you feel uncomfortable working under the watchful eye of the camera. No one likes to be watched while they work. Evidently, your employer has some trust issues regarding the staff group. It is unfortunate that management has not been upfront with the group, and their actions have created an "us against them" environment. I believe patients are better-served when everyone is on the same team and a happy, relaxed working environment exists. If I was in your position, I'd probably be looking for another job. RDH

All the best,
Dianne

DIANNE GLASSCOE WATTERSON, RDH, BS, MBA, is a professional speaker, writer, and consultant to dental practices across the United States. Dianne's new book, "The Consummate Dental Hygienist: Solutions for Challenging Workplace Issues," is now available on her website. To contact her for speaking or consulting, call (301) 874-5240 or email [email protected]. Visit her website at www.professionaldentalmgmt.com.