On February 13, 2014, the California Attorney General issued an opinion that continuous videotaping surveillance of truck drivers did not constitute a misdemeanor under Labor Code section 1051 when the video file is inspected by a third party who is an agent of the driver's employer and the videotape surveillance is for the sole benefit of the driver's employer.
Labor Code section 1051 provides, in pertinent part, that any person who requires, as a condition precedent to securing or retaining employment, that an employee or applicant be photographed for the purpose of furnishing the photograph to any other employer or third person, and the photograph can be used to the detriment of the employee, is guilty of a misdemeanor.
In the municipal and commercial transportation industry, there is a common practice of using video cameras to record the actions of a truck or bus driver. Such cameras are usually operated by a third party, the system operator, who is under contract with the driver's employer. The footage is usually recorded in a continuous loop. When there is a "triggering event" such as hard braking, swerving or a collision, the video is saved and made available to the driver's employer. System operators usually hold the video recording confidentially and only make the recording available to the driver's employer.
The Attorney General concluded that the practice described above does not violate Labor Code section 1051. The Attorney General found that the intent of section 1051 was to prohibit the practice of blacklisting certain employees, or only allowing certain individuals into a particular trade. The Attorney General noted a prior 1984 decision which held that section 1051 barred the taking of fingerprints and photographs by an employer for the purpose of furnishing them to a third party where the Los Angeles Olympic Organizing Committee was taking photographs and fingerprints of applicants and delivering them to a law enforcement agency in order to obtain criminal history information. However, the Attorney General views that decision as a "narrow one."
The AG Office also stated that section 1051 does not stand as a universal barrier to the use of photographs or fingerprints for ensuring safety in the workplace. It described the statute as "outdated." In any event, the Attorney General concluded that section 1051 was not violated because the videotapes were transferred by an agent of the employer to the employer itself, and thus it was not given to any "other employer or third person" as required by the statute. The Office concluded that section 1051 is not violated when an employer requires on-the-job videotaping of its employees for the employer's own use.
The tension between privacy rights and safety is addressed by this Attorney General opinion, which though not binding upon the courts can be cited as persuasive authority. In a case handled by Steve Berliner and James Oldendorph of our Los Angeles office, the Los Angeles County Superior Court ruled that Metrolink's installation and operation of an audio and video monitoring system in the cabs of Metrolink locomotives did not violate the locomotive engineers' privacy rights, due process rights, and that the actions were not preempted by state law.
Ops.Cal. Atty Gen. No. 12-1101 (February 14, 2014) [2014 WL 587948].