Our blog post on Nanny Cams in the workplace turned out to be one of our most popular posts (makes us wonder what people are putting in the search bar?). So, we thought we would follow up with some more information for employers about surveillance in the workplace.
Employers with unionized workforces will need to be sure that any surveillance program or policy complies with the National Labor Relations Act. It has long been the policy of the National Labor Relations Board that employers with a unionized workforce must bargain with the union before installing hidden cameras. In Colgate-Palmolive Company, 323 NLRB 515 (1997), the Board held that the installation and use of covert cameras was a mandatory subject of bargaining. That decision left open, however, the question of whether an employer could install non-hidden, or conspicuous, methods of surveillance without going through the union.
It appears that question was answered earlier this year, however, in Endurance Environmental Services, LLC, 2022 NLRB LEXIS 45, 2022 WL 393229 (2022). In a footnote in that decision, the Board said, “[t]he Respondent’s decision to install cameras that observe employees at work was a mandatory subject of bargaining.” The Board further indicated that it would likely not matter if cameras were for surveillance purposes or not, as the installation of cameras in the workplace is likely always a mandatory subject of bargaining. So, it appears the current Board views the installation of cameras as a mandatory subject of bargaining, regardless of whether the cameras are covert or conspicuous.
The NLRA also impacts non-union employers who may engage in surveillance. For example, in AdvancePierre Foods, Inc., 366 N.L.R.B. No. 133 (July 19, 2018), the Board held (and the D.C. Circuit affirmed) that an employer’s video surveillance of employees distributing union materials violated the Act.
The scale and scope of an employer’s ability to conduct workplace surveillance are topics we could spend a lot of time on, but we will save those for another day.
In addition to the NLRA, employers should also be aware of the wiretapping and surveillance laws of the states in which they operate. Many state wiretapping laws require both parties to consent to the audio recording of a conversation or a communication. That is true in Pennsylvania, for example. See here for more on how the Pennsylvania law may be implicated in the workplace. Other state laws only require one person to consent to such recording or allow recordings in situations where two individuals did not have a reasonable expectation of privacy.
In order to get around state wiretap laws, some employers use cameras that do not capture audio recording, but instead capture only video. But, even still, employers must be aware of state laws that govern such recordings. Some states, such as Delaware, prohibit video surveillance in certain workplace locations. Other states require notification to employees prior to the installation of workplace cameras.
Suffice to say that video monitoring of employees in the workplace is a compliance minefield for employers. Despite these challenges, many employers do it, and do it successfully. If you have not already started that process, and maybe even if you have, we recommend that you work with your friendly neighborhood labor and employment attorney to ensure compliance.