Safety v. Privacy: Finding the Balance with Video Surveillance

March 2019

Article by: Jacqueline D. Gant

Previously printed in the LexisNexis Labour Notes Newsletter.

Arbitrator Ken Saunders’ recent decision in Lafarge Canada Inc. v. Teamsters, Local Union No. 213 (In-Cab Camera Grievance), [2018] B.C.C.A.A.A. No. 51 (Saunders) is instructive for employers considering the use of video surveillance in their workplace.

Facts

Lafarge Canada Inc. (the “Employer”) operates Ready Mix cement trucks.  These are extremely large vehicles which carry heavy liquid loads on congested urban roads.  In an effort to continuously improve safety and driver training, the Employer introduced the SmartDrive System, consisting of five truck cameras:  four cameras around the perimeter of the vehicle and one in-cab camera that captures the driver’s actions (the “System”).

The System serves multiple purposes:  safety, training, driver exoneration in the case of false claims, improved productivity and support for disciplinary investigations.  The System has no capability for real-time surveillance or remote activation.  A recording is only triggered by certain events, such as excessive speed, hard breaking or a collision.  If triggered, the System transmits a 20-second video clip of the incident for review.

As part of the introduction of the System, the Employer notified employees in writing of the installation of the cameras, held training sessions regarding the System, implemented a 120-day grace period where the System would be activated but employees would not face any disciplinary action, and revised its privacy policy.  The privacy policy advised employees that only a small number of managers have access to the video and that there are security and data retention safeguards surrounding the recordings to ensure employee privacy is protected.

The Union grieved the installation of the in-cab camera, arguing that it unreasonably intruded upon a driver’s privacy.

Decision

The Employer’s continued use of the in-cab camera was upheld.  In dismissing the grievance, Arbitrator Saunders balanced an employee’s privacy rights and the Employer’s legitimate interests.  To determine whether the installation and use of the in-cab camera was reasonable, the arbitrator reviewed the following factors:

  1. Is the safety concern bona fide?  The importance of safety in the Ready Mix trucking industry was found to self-evident given the size, weight and liquid load of the trucks.
  2. Is there a connection between the role of the camera and the safety issue?  A nexus was found between the in-cab camera and training for skills improvement and accident prevention, accident investigation and driver exoneration.  It was held that only the in-cab camera can record relevant driver behaviour such as situational awareness, mirror checking, forms of distracted driving and seatbelt use.
  3. Was the System implemented in a reasonable manner?  The implementation of the System was reasonable, as the Employer provided notice and training on the System and there are numerous checks and balances in place to maintain employee privacy.  In particular, there is no real-time monitoring, recordings are only saved in 20-second increments when there is a triggering event, and the recordings are securely transmitted, distributed and retained.
  4. Did the employer consider alternate and less intrusive measures?  It was held that there are no less intrusive measures available, as only the in-cab camera can confirm that a driver is alert, not distracted and therefore fully aware of road conditions.

In addition to determining the use of the in-cab camera to be reasonable in accordance with the above test, the arbitrator made the following important determinations:

  • Overt v. covert surveillance: It was reaffirmed that overt surveillance is held to a lesser standard of reasonableness than covert surveillance, even when cameras are in close proximity to the driver.
  • History of safety violations not required: Past safety or security infractions are not a prerequisite for the implementation of overt surveillance.  Rather, the safety-sensitive nature of the workplace is taken into account when determining reasonableness.
  • Objective v. subjective: Intrusion on privacy involves an objective – rather than a subjective – test.  The individual thoughts and feelings of specific employees are not weighed in the analysis.

Lessons for Employers

The Employer’s implementation of video surveillance in this case can be used as a guide for others considering introducing overt surveillance into the workplace.  In particular, the analysis around how the Employer met the reasonableness test — including the steps taken to inform employees about the System — is helpful and instructive.