Surveillance Policy in the Trump Administration – Implications for the Workplace
Trump oversees two separate but interconnected surveillance schemes. First, Trump commands the U.S. intelligence community, including the Central Intelligence Agency, the Federal Bureau of Investigation, and the National Security Agency. Second, Trump has influence over the separate, but interconnected surveillance system operated by corporate America. In corporate surveillance, machine learning combines with increased online and offline data collection, allowing corporations to become increasingly adept at tracking people’s behavior.
Trump’s principals have proposed policy changes in the past that provide a glimpse into how surveillance policy may develop. CIA Director Mike Pompeo’s January op-ed proposed that Congress repeal the core element of the USA FREEDOM Act by passing “a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database.” Attorney General Senator Jeff Sessions has also supported bulk collection of communications metadata. Such proposed policies raise civil liberties concerns.
Trump’s surveillance policy in these arenas may have implications for the workplace. Allowing national security and corporate surveillance to take even more precedence over privacy interests may open the door to expanded workplace surveillance.
Currently, there is no explicit prohibition in U.S. federal law against employers monitoring the workplace—except in the case of monitoring workers engaging in protected concerted activity as defined under the National Labor Relations Act (“NLRA”). This prohibition on surveillance includes an employer’s use of cameras because such use creates the impression that employees’ union and/or protected concerted activities are being watched.
The NLRA extends beyond mere protection against the surveillance of union meetings. It can include any surveillance of employees acting together for their mutual benefit and/or aid, including:
- their discussion of working conditions;
- photographing, documenting and recording of work conditions to document possible violations;
- participating in grievance investigations,
- participating in union elections,
- or participating in various other areas related to working conditions.
While the Federal Wiretapping/Electronic Communications Privacy Act broadly applies to workplace video surveillance, currently the states are left to define what constitutes acceptable video monitoring practices in the workplace.
California has laws against audio or video recording and installing a surveillance mirror in a restroom, shower, fitting room, or locker room or room designated by an employer for changing clothes, unless authorized by a court order. In the absence of state law that specifically allows or prohibits surveillance, courts determine whether an employee’s privacy has been violated by looking at two competing interests: the employer’s need to conduct surveillance and the employee’s reasonable expectation of privacy. This is a balancing test in which employers must provide a legitimate, reasonable basis for the location, scope, and use of surveillance video recordings in the workplace. Health, safety, security and monitoring of worker productivity and efficiency have been recognized as legitimate business reasons for using video surveillance.
If an employer is considering or has already installed surveillance cameras in the workplace, consider the following points:
- Does the installation of cameras create the impression that protected concerted activity is being monitored? If so, challenge it on that basis.
- Where does the Employer propose installing the cameras, and for what reason(s)? Probe by asking questions and for information to see whether the employer’s stated reasons logically correlate to where it seeks to install cameras, times of use and how it intends to access and use the footage. If it does not correlate, challenge it on that basis.
- Limit the locations and amount of time the cameras will be in use during the day according to the appropriate business use(s).
- If the Employer seeks to use the footage to monitor worker performance, demand to bargain over this proposed change to working conditions. In addition, request that the Union be provided notice and a copy of any footage within a certain time period if the footage involves a claimed workplace infraction.
- Request that only a certain manager(s) and the Union have access to view footage, i.e. request to maintain footage access on a “need-to-know” basis.
- Ensure advanced written notice is hand-delivered to employees and posted notifying employees where cameras are installed and the reasons for cameras.
- Ensure that surveillance is addressed as part of the collective bargaining process.
If you have any questions about surveillance in your or your members’ workplaces, please contact your labor counsel.
By Caroline Cohen | February 21, 2017