Public employers grapple with legal issues surrounding video surveillance of employees

August 1, 2014

Employment Law BookNew technology offers public employers unprecedented opportunities to protect the security of their employees and the public, and to ensure that employees do not engage in any misconduct on their property.  But murky legal precedent surrounds employers’ statutory duties in connection with the installation of video surveillance cameras and the use of footage to discipline employees.

Must a public employer negotiate with the union before installing overt or covert cameras, or before using footage from those cameras to discipline employees?

Several public employment boards and commissions have arrived at different answers to these questions.

(Westlaw Next users: Click here for the Illinois Public Employee Reporter and here for the Michigan Public Employee Reporter.)

Case law in this area illustrates the pitfalls public employers face in implementing and utilizing video surveillance technology. In Service Employees International Union, Local 73 and City of Chicago, 31 PERI 3 (Ill. LRB, State Panel 2014), the Illinois Labor Relations Board, State Panel, decided that the city of Chicago committed an unfair labor practice by using hidden surveillance footage from covert cameras to discipline employees.

The cameras were installed in both public and private areas of the library, without notice or bargaining with the employees’ union, in response to break-ins at a local library.

The Illinois Board agreed with an administrative law judge’s conclusion that employees enjoy an expectation of privacy in both working areas and break rooms.

But the Michigan Employment Relations Commission reached a seemingly opposite conclusion – possibly arising from different factual circumstances – in University of Michigan and University of Michigan Skilled Trades Union, 25 MPER 64 (Mich. ERC 2012).

It decided that the University of Michigan committed no unfair labor practice by secretly installing cameras and filming employees who constructed an unauthorized “break room.”  The Michigan Commission reasoned that the university properly exercised its managerial right to supervise employees during work time.

Before installing surveillance equipment or using surveillance evidence to impose discipline, public employers should consider if state public employment laws require them to give unions notice and an opportunity to bargain these issues.  They should examine the circumstances and holdings of the following decisions:

In City of Paterson v. Paterson Police PBA Local 1 et al., 36 NJPER 114 (N.J. PERC 2010), the New Jersey Public Employment Relations Commission ruled that a municipal employer committed no unfair practice by failing to negotiate before installing three visible security cameras in a non-public area, i.e., the police department radio room.  Any restriction on the employer’s right to install the surveillance cameras would significantly interfere with the determination of governmental policy, the New Jersey Commission reasoned.

In City of Paterson v. Paterson Police PBA Local 1 et al., 33 NJPER 50 (N.J. PERC 2007), the New Jersey Commission rejected unfair practice charges brought by two police officers’ unions. The unions challenged the city’s failure to negotiate with them before installing overt surveillance cameras in two work locations within the police department.  The New Jersey Commission found that the city maintained a managerial prerogative to install and use the cameras to protect people and property.

In California School Employees Association, Chapter 477 v. Rio Hondo Community College District, 37 PERC 197 (Cal. PERB 2013), the California Public Employment Relations Board decided that a community college district was required to engage in effects bargaining before installing security cameras in public and private areas of its new learning resource center.  The California Board determined that evidence utilized by an employer for imposing discipline – including video surveillance footage of employees – constituted matters within the scope of representation.

In Clay Educational Staff Professional Association v. School District of Clay County, Florida, 34 FPER 139 (Fla. PERC G.C. 2008), the General Counsel for the Florida Public Employees Relations Commission dismissed an unfair practice charge in which the union alleged that the school district improperly failed to bargain before altering a mandatory subject of bargaining, i.e., the use of electronic surveillance or monitoring to keep track of employees’ activities.

The General Counsel found that the union did not make the required showing that the district maintained a past practice of monitoring employees by personal observation, and not by electronic means.

In Oil City Area Education Association PSEA/NEA v. Oil City Area School District, 34 PPER 31 (Pa. LRB H. Ex. 2003), a hearing examiner for the Pennsylvania Labor Relations Board decided that a school district breached bargaining agreement provisions by basing a teacher’s evaluation, in part, on video-monitored observations of the teacher’s work performance.

At the same time, the examiner said the district had no duty to engage in effects bargaining because the cameras did not “have the effect of changing guidelines or standards for evaluating employees.”