TEST YOUR OHS I.Q.: Can Manufacturer Use Video Surveillance of Workers for Safety Purposes?

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SITUATION

A manufacturer experiences multiple safety incidents in which machinery is damaged or destroyed and workers could’ve been injured. Another incident involves workers harassing a co-worker, throwing flammable debris near a workstation and preventing the co-worker from leaving. So the manufacturer installs surveillance cameras in its plant for safety purposes. The cameras provide a view of the assembly line, and shipping and receiving areas, covering 50% of the production area. And they focus on the machines rather than on workers. There’s no real-time monitoring of the camera feeds—instead, the video footage is only viewed when there’s a triggering event, such as damage to machinery or other property or a worker’s injury, and the recordings are overwritten or erased every two weeks. The manufacturer tells workers about its use of video surveillance and the cameras are visible to workers. But the union demands that the manufacturer remove the cameras, claiming they violate workers’ privacy rights and that instead, the manufacturer could hire more supervisors to improve safety.

QUESTION

May the manufacturer use video camera surveillance in its plant?

A. No, because video surveillance violates the workers’ privacy rights.

B. No, because hiring additional supervisors to address the safety incidents is a reasonable alternative to the use of cameras.

C. Yes, because the surveillance is reasonable in scope and used for safety purposes only.

D. Yes, but only because the cameras are visible and the workers have been informed of their use.

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ANSWER

C. The manufacturer’s video surveillance is appropriate because the cameras have been installed for safety purposes and are being used in a reasonable manner.

EXPLANATION

This hypothetical is based on a BC labor arbitration decision in which the arbitrator found that installation of surveillance cameras by a manufacturer was a reasonable exercise of management rights. The arbitrator used a reasonableness test to determine if individual workers’ privacy rights were balanced against the employer’s right to manage its workplace. Prior safety incidents that led to the destruction of machinery and posed a risk of injury to workers justified the installation of the cameras. The manufacturer’s use of video cameras was intended to improve safety and not to monitor workers in real time for any other purpose. The number and placement of the cameras was also found to be appropriate, as they were focused on the machines and operations rather than specific individuals. In addition, the arbitrator noted they were only used as an investigative tool for past safety incidents and infractions. Thus, the manufacturer’s use of the surveillance cameras was reasonable and properly balanced against workers’ privacy rights, concluded the arbitrator.

WHY THE WRONG ANSWERS ARE WRONG

A is wrong because although workers have privacy rights, even in the workplace, those rights aren’t absolute and must be balanced against the employer’s rights, such as the right to manage and protect its workplace. Workers’ privacy rights vary based on the level of intrusion. Intruding into a worker’s person, personal space or personal property, such as by searching lockers or conducting drug and alcohol tests, has a higher level of protection than the monitoring of workers doing their jobs. The circumstances and reasonableness of the surveillance determine whether workers’ privacy rights have been properly balanced against the employer’s need to monitor its workplace. Here, those rights were properly balanced because workers weren’t subject to targeted monitoring or any individual review at all unless a safety incident occurred. The cameras were focused on work areas and machinery where workers would be engaged in doing their jobs and weren’t placed in areas such as bathrooms and breakrooms where workers have an expectation of privacy.

B is wrong because alternatives to video surveillance will be considered as part of the reasonableness test but the simple existence of an alternative doesn’t preclude surveillance. All the circumstances, including the cost, burden and effectiveness of alternatives to surveillance, would need to be considered. In this case, the cost of installing video cameras is likely to be far less than hiring additional supervisors, which would involve the continuing cost of annual salaries and benefits. Plus, supervisors may be less effective than the cameras because they can’t be everywhere and see everything at all times. Therefore, it would be unlikely for a court or arbitrator to find hiring supervisors a more reasonable alternative to the use of video cameras in this case.

D is wrong because it implies that covert surveillance is never permitted. Privacy laws permit employers to utilize either covert or overt video surveillance provided the circumstances warrant such surveillance and it’s implemented in a reasonable manner. But the standard for covert surveillance is a higher one and requires more justification by the employer. For example, an employer may be justified in using concealed cameras to identify who’s been stealing company supplies from a storeroom. In this case, however, the manufacturer’s cameras weren’t concealed but were in the open and workers were aware of their use. And as explained previously, all of the circumstances, including but not limited to the workers’ knowledge of the surveillance, makes the use of the video cameras reasonable and justified.

Insider Says: Here’s a Model Video Surveillance Policy you can download and adapt for your workplace. It explains why you’re conducting video surveillance, where the cameras will be placed, when they’ll be operated, how the footage will and won’t be used, and sanctions for violations of the policy.

SHOW YOUR LAWYER

Kadant Carmanah Design v. International Association of Machinists and Aerospace Workers, District 250, [2015] CanLII 79278 (BC LA), Nov. 12, 2015