Workplace video surveillance

Monthly Labor Review, July, 1997 by Brinton E. Bohling

Justice Bruce M. Selya opened a recent first-circuit court opinion by proposing that "as employers gain access to increasingly sophisticated technology, new legal issues seem destined to suffuse the workplace."(4) Both the U.S. First Circuit Court of Appeals and the National Labor Relations Board (NLRB) recently addressed issues surrounding video surveillance in the workplace. The court of appeals held that unconcealed video surveillance in a worker's common area does not violate the worker's right to privacy, while the NLRB concluded that hidden cameras in the workplace fall into the gray area of privacy and should be considered a mandatory subject of bargaining in labor negotiations.

In Vega-Rodriguez v. Puerto Rico Telephone Co.,(5) the circuit court unanimously ruled that Puerto Rico Telephone Company did not violate the U.S. Constitution's fourth-amendment protection against unreasonable search and seizure. Installing surveillance cameras in the company's common workspace, the court held, did not infringe on the employees "reasonable expectation of privacy."(6)

The telephone company installed a video surveillance system at its center in 1990, but abandoned the project when employees complained. In June of 1994, the company reinstated video surveillance by installing three cameras surveying the workspace and a fourth to track all traffic passing through the main entrance. The surveillance was exclusively visual; the cameras had no microphones and operated continuously. Soon after the system was installed, the appellants and several fellow employees protested. Management maintained that the cameras were installed for security reasons only, while the appellants argued that the system had no purpose other than to pry into employees' behavior. When management did not respond to employee re quests to remove the cameras, the appellants filed suit in Puerto Rico's Federal district court. They contended that the ongoing surveillance constituted an unreasonable search prohibited by the fourth amendment and therefore violated a constitutionally protected right to privacy.

In Smith v. Maryland,(7) the court observed that intrusions of personal privacy cross the constitutional line only if the conduct infringes upon some "reasonable expectation of privacy." To gauge whether the company's actions met this criterion, the court examined the expectation of privacy in the affected work area at the telephone company. Given that workers perform their tasks in an open, undifferentiated area, the court concluded that there was no reasonable expectation of privacy of workers from management supervision. The court noted that the surveillance cameras could record only what was plainly observable to the naked eye.

Once the court rejected the appellants' argument that there was something "constitutionally sinister" about electronic surveillance, their claim to an infringement of privacy vanished. The court then brushed aside the appellants' other claim asserting that company video surveillance violated the first amendment's protection of free speech. The court noted that the cameras did not record sound, and as long as there is no fourth-amendment violation of privacy, video-only surveillance does not constitute a claim against the first amendment.

However, in writing for the court, Judge Selya clearly did not close the door on all privacy concerns relating to video surveillance. The judge cautioned that "cases involving covert use of clandestine cameras, or cases involving electronically assisted eavesdropping, may be quite another story." Invoking the image of cameras installed in rest rooms, the appellants argued that the risk of future abuse justifies curtailing the telephone company's use of video surveillance. But Selya dismissed the claim by noting that People v. Dezek(8) already held that operating cameras in rest-room stalls constitutes a breach of privacy.

In its April 23, 1997, decision, the NLRB ruled that the installation of surveillance cameras in the workplace should be considered "a mandatory subject of bargaining" and ordered Colgate-Palmolive to negotiate with the chemical workers' union. The Board's ruling affirmed the decision of administrative law judge Richard H. Beddow, who ruled that hidden surveillance cameras raise privacy concerns and should be considered beyond the scope of management's unilateral "entrepreneurial control."

The inciting incident occurred on July 11, 1994. Allan Engle was performing cleaning duties in Colgate-Palmolive Building No. 2. While he was in one of the second-floor rest rooms, he looked up and observed a camera about 6 to 8 feet away in the air vent, angled toward him. Engle, who testified that he had never seen any surveillance camera inside the plant prior to that day, brought it to the attention of three other unit employees, including union steward Luther Hall. After confirming the report, the union made a request to bargain over the installation of hidden surveillance cameras.

Colgate-Palmolive argued that the union had waived its right to bargain, because it had not requested to bargain over numerous other cameras at the site. In support of this contention, the company disclosed that it had as many as 19 cameras (unconcealed and monitoring company property) installed to guard against theft. The NLRB rejected this and other company arguments.