In recent years, there has been an increase in the prevalence of employees secretly recording conversations in the workplace. While it is not unlawful for a conversation to be recorded when only one person is aware that the recording is being taken, the undisclosed recording of conversations can raise privacy concerns. The recent decision of […]read more
Video Surveillance in the Workplace
The use of surveillance cameras has increased along with other digital technology. They are a common feature in most businesses and busy roadways. They have also become popular for personal use with products like dash cams and home security systems. As the digital world creeps into our privacy, the balance of management rights and the personal privacy of employees has become an important consideration in employment & labour law. In Teamsters Local Union No. 987 of Alberta v Sobeys Capital Incorporated (Rocky View), 2023 CanLII 4464 (AB GAA), the Arbitrator addressed the question of whether it was reasonable to operate surveillance cameras in the employee lunchroom.
The Sobeys facility in Rocky View, Alberta, is at the center of this matter. The facility is 1,300,000 square feet and has over 400 employees. 200 of these employees are represented by the Teamsters Union.
There were over 200 surveillance cameras throughout the premises. The Union raised concerns about two cameras installed in plain view on opposite and diagonal ends of the employee lunchroom and focused on a central area of the room. These security cameras were installed in the employee lunchroom in 2018 without any notice or consultation with the Union.
The Union filed a grievance claiming that the use of surveillance cameras in the employee lunchroom was inappropriate for a number of reasons: The employees had no reasonable alternative to taking their breaks in the lunchroom; employees were uncomfortable with feeling watched during their breaks; there were less invasive methods of monitoring the lunchroom; employee meetings, including Union meetings, were sometimes held in the lunchroom; and the facility had no issues with theft, breakages or employee injuries in the lunchroom.
The employer argued the positioning and use of these security were reasonable, noting that the cameras only record video and were positioned to avoid sensitive areas like washrooms. All recordings were stored on a hard drive or drivers in a locked room. Access to the room was limited to specific people and recordings were only viewed for reasons such as employee safety, loss prevention and in response to specific incidents. The cameras were not installed in the lunchroom to monitor productivity or policy violations. After five to six months, recordings were overwritten with new footage. A licensed security guard had the ability to watch the footage in real-time but it was not common for them to do so.
There was also signage in the facility that informed employees that they were being recorded. Employees were further made aware of the surveillance cameras during orientation and were provided with the Employer’s “CCTV Acceptable Use Policy”. The policy stated that the use of the cameras was to: address safety and security requirements while respecting and preserving individual privacy; aid in the resolution of disciplinary or grievance matters; assist with any potential civil litigation; and respond to incidents involving Loss Prevention or Occupational Health and Safety. Failure to follow the policy could result in an employee’s dismissal.
In reaching his decision, Arbitrator Andrew R. Robertson, K.C. noted that the balance of privacy and management rights will depend on the unique circumstances of each matter. The Arbitrator was careful to distinguish overt (open) surveillance from covert (secretive) surveillance. Covert surveillance has a higher risk of causing an employee surprise distress or embarrassment. Overt surveillance does not create as great of a risk to employees since employees know they are being surveilled. Because of these differences, there are separate considerations for determining the appropriateness of overt and covert surveillance.
The legal test for overt surveillance is whether the use of surveillance cameras was reasonable in all circumstances and whether the surveillance was conducted in a reasonable way.
The Arbitrator was clear that the Employer was not required to wait until an incident occurred or exhaust other means of security before installing surveillance cameras. The proactive use of surveillance cameras is permissible.
After analyzing the facts, the Arbitrator determined that the Employer’s use of security cameras was reasonable and the Union’s grievance was dismissed. While the size and rural location of the Employer’s facility meant that there were no practical alternatives to eating lunch in the lunchroom, the Arbitrator found that the Employer’s responsibility for the safety of their employees extended to the lunchroom and justified use of the cameras.
Other important factors included the limited use, monitoring and accessibility of the surveillance camera recordings. The Arbitrator did not consider supervisors or managers monitoring the lunchroom to be an effective alternative. The cameras were also useful during the investigation of an employee altercation.
Although the request to remove the cameras from the lunchroom was denied, the Arbitrator did require the Employer to inform employees of the cameras more thoroughly. The Employer was instructed to add signage to the lunchroom and include statements about the cameras in their Loss Prevention and Theft Policy and the facility Handbook. The statements are required to inform employees of: the permitted use of the cameras; the fact that recordings are not accessible remotely, recordings are only accessible by a limited number of people, the footage is not routinely reviewed and all recordings are overwritten after six months.
This decision provided useful guidance for employers who are considering implementing the use of surveillance cameras in the workplace. The decision reflects that use of security cameras to serve a legitimate purpose is generally reasonable, but that efforts to minimize access and abuse of the footage must be put in place and, further, employees should generally be given sufficient information about the use and purpose of these cameras.
As also noted in the decision, use of covert surveillance will be a different story, and we recommend seeking advice before engaging in this practice.