Under the right circumstances, the use of hidden cameras to monitor employees suspected of improper conduct can be an effective—and legal—means of catching workplace wrongdoers, legal experts said. But the alleged use by a San Diego-area hospital likely was not under the right circumstances, they agreed.

A recent lawsuit alleges that Sharp Grossmont Hospital secretly recorded, between July 2012 and June 2013, 1,800 patients via hidden cameras inside three labor and delivery operating rooms at the women's health center. The recordings, which in some cases captured patients' faces, included footage of Caesarean births, hysterectomies, dilatation and curettage following miscarriages, and other procedures, the suit states.

In a statement, Sharp HealthCare president and chief executive officer Chris Howard said that motion-activated cameras were placed in each of the operating rooms to determine how anesthesia drugs were going missing from carts in the rooms.

“Although the cameras were intended to record only individuals in front of the anesthesia carts, others, including patients and medical personnel in the operating rooms, were at times visible to the cameras and recorded without sound,” Howard wrote, adding that determining the cause of the missing drugs through interviews and other investigative methods was unsuccessful and that this method identified the individual removing the drug.

Regardless, the incident raises serious privacy concerns for both patients and employees, labor and employment and privacy lawyers told Corporate Counsel.

“This should never be OK,” plaintiffs attorney Allison Goddard said in an interview. “There are a lot of different ways to investigate whether drugs were going missing.”

Art Silbergeld, a labor and employment partner at Thompson Coburn in Los Angeles, agreed, noting that the use of recording equipment in operating rooms should be limited to medical education purposes only, and in those instances the camera lens should be zoomed into the incision and procedure site so that patients' faces are not shown.

“There are better ways to determine whether an employee is stealing drugs,” said Silbergeld, adding that these methods include maintaining accurate counts of the number of drugs that enter and exit an operating room, along with detailed logs of all the people present in the room, as well as inspecting employees' personal property, including, for example, lockers, jackets and briefcases, per a company policy stating that employers may engage in such conduct.

Such notification generally would allow employers to videotape employees' workplaces, said Diana Maier of employment and privacy law firm Maier Law Group. Although that notice can be provided via the company policy, employers also may consider using a separate signoff form or sending emails when there is an update regarding the use of cameras as a monitoring device.

Employers also will want, she added, “to get the least information you need for the purposes that you need it for,” noting that, in the California hospital case, this would mean recording operating room activity only before or after the procedure, since the person taking the drugs arguably would not do so when the patient is in the room.

“Whenever you're collecting information, you want to make sure you aren't overbroad,” Maier said.

Stephen Breidenbach, an associate at Long Island, New York-based Moritt Hock & Hamroff and former cybersecurity professional, said in addition to narrowly restricting the camera angle so that it doesn't capture excess information, there are other considerations when employers opt to video record employees. For example, if the information is stored somewhere, encryption or other measures should be taken to ensure that only those who need to see the footage are able to.

Employers also should be aware of the limits of consent, he added, noting video recordings that also contain audio footage may present additional privacy issues.

“Regardless of the fact that you're collecting this information for a purpose, there are still privacy laws,” Breidenbach said.