Feb. 24 -- Employers that continuously videotape their truck drivers for disciplinary purposes do not violate a provision of the California Labor Code that was adopted in 1913 to combat blacklisting of pro-union workers, Attorney General Kamala Harris (D) said Feb. 13 in an opinion (Cal. Op. Att'y Gen., No. 12-1101, 2/13/2014).
In response to a request for opinion from Sen. Jerry Hill (D), the AG said video surveillance of on-the-job driving is not a misdemeanor under Labor Code Section 1051. That section prohibits employers from requiring employees to submit to photographs or fingerprints that the employer intends to share with another employer or third party “to the detriment of the employee or applicant for employment.”
Commercial and municipal transportation employers often use video cameras operated by third party contractors to continuously record the actions of truck or bus drivers, the AG said in the opinion. The footage is on a continuous loop and is overwritten unless the vehicle undergoes unusual force such as hard braking, swerving or crashing.
The footage of those events is saved and employers are able to review it for training or disciplinary purposes.
The AG rejected suggestions that use of the cameras and footage falls under Labor Code section 1051 because employers are requiring their drivers to have their images recorded and shared with a third party for possible use in disciplinary action.
The California Legislature enacted the law as part of the Penal Code in 1913, and amended it in 1914, to block employers from circulating lists of pro-union workers to prevent them from getting jobs. The AG said it found no court rulings interpreting the code section, and the law fell out of use after the 1935 enactment of the National Labor Relations Act.
In 1984, the AG said the Los Angeles Olympic Organizing Committee could violate section 1051 if it took photos and fingerprints of job applicants and delivered them to law enforcement agencies for background checks. The conclusion was a narrow one and is not applicable in other situations, the AG said.
“Thus, we approach the question here with an understanding that Labor Code section 1051 does not stand as a universal or insuperable barrier to the use of photographs or fingerprints for ensuring safety in the workplace,” the AG said. “Instead, although not entirely a dead letter, it may be fairly characterized as an outdated statute from which the Legislature has often seen fit to part ways.
The opinion pointed to a bill enacted in 2012 to expand to commercial vehicles a law that already prohibited drivers from placing anything on the windshield or rearview mirror of a vehicle. The existing law and amendments to Vehicle Code section 26708 made an exception for a “video event recorder with the capability of monitoring driver performance to improve driver safety.”
The amendment aligned state law with federal law. Through the amendment, the legislature clearly understood that video recorders would be used to videotape employee drivers, and that third-party contractors might carry out the taping operations.
“Because Labor Code section 1051 is nowhere mentioned in any of the bill analyses for either the 2010 or 2012 amendments of Section 26708, it is reasonable to infer that the Legislature believed section 1051 had no application to the videotaping of an employee-driver for use by the driver's employer in furtherance of highway safety,” the AG said. “That is our belief, as well.”
By Laura Mahoney
Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=mcan-9gmurd.
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