Thursday, November 20, 2008

Hidden cameras pose potential problems

The D.C. Circuit is considering an appeal by 16 former Anheuser-Busch employees who were disciplined or fired after the company installed hidden cameras without first bargaining with their union. Among the violations caught on video – sleeping on the job, peeing on the roof, and smoking marijuana. It is fairly settled law that in a unionized setting, the installation of security cameras is a mandatory subject of bargaining. Thus, Anheuser-Busch violated federal labor law by unilaterally installing the cameras. At issue in the appeal is whether an employer’s own violation of labor law should require it to ignore the employees’ misconduct.

The union argues that the employer should not receive any benefit from its misconduct. The employer argues that the remedy for its unfair labor practice is to remove the cameras, and that the employees should not receive a free pass for their misconduct. I’m curious to see how this case comes down, because both sides have compelling arguments, although I think the employer has the stronger position. It could have discovered the misconduct without the cameras and taken the same actions against the employees. The cameras were coincident to, but not the cause of, the discipline.

In a non-union setting, the use of hidden cameras pose their own unique problems. First, to avoid any potential illegal wiretap issues, cameras should be video-only. Surreptitious voice recordings could violate state and federal wiretap laws. Secondly, cameras should not be placed in any areas in which employees have an expectation of privacy. Bathrooms and locker rooms are per se off limits. Work areas, lunch rooms, smoke holes, and other areas in which employees cannot reasonably expect to have any privacy are all fair game for surveillance cameras.

[Hat tip: The Blog of LegalTimes]