"Eye in the sky": employee surveillance in the public sector.

• Author: Waxman, Stuart S.

Developments in modern technology, such as digital video, GPS, and email and computer monitoring software, have made it exponentially easier for employers to monitor and investigate employees, safeguard company property, and increase employee productivity. (2) However, as these forms of surveillance technology become more readily accessible to a majority of employers, more and more employers are at an increased risk of infringing upon employee rights. This is especially true in the public sector, where, in New York, employers are bound by the strictures of the Taylor Law, (3) which governs the rights of unions for public employers in New York, as well as the limitations on warrantless searches and seizures pursuant to the Fourth Amendment of the United States Constitution. (4) In addition, public employers must be wary of the multitude of state and federal statutes designed to protect employee privacy. (5)

The widespread use of such surveillance by employers in recent years has been well-documented:

* a 2007 survey (6) conducted by the American Management Association ("AMA") and the ePolicy Institute found that, among the companies surveyed:

** 66 percent monitor employee Internet activity; (7)

** nearly half (48 percent) use video monitoring to counter theft, violence, and sabotage, while 7 percent use video surveillance to track employees' on-the-job performance; (8)

** 45 percent monitor time spent and numbers called from office phones, while another 16 percent record phone conversations; (9)

** two studies by Aberdeen Group in 2012 found that 62 percent of employers with field employees use GPS to track staff, as reported by Workforce Magazine; and (10)

* a 2013 poll found that 37 percent of the hiring managers and human resources professionals surveyed use social networking sites to prescreen candidates for employment. (11)

This article will summarize and analyze the cases and statutes that define the legal framework within which New York public employers, including school districts, must operate when implementing particular forms of employee surveillance, such as video surveillance, email monitoring, and GPS tracking. Part I will examine a public employer's duty to negotiate when it comes to employee surveillance, and includes summaries of the pertinent decisions of the New York Public Employment Relations Board ("PERB") and discusses what these decisions mean for public employers. Part II will synopsize the pertinent case law interpreting the Fourth Amendment of the United States Constitution, as it applies to searches in the employment context, including the monitoring of employee text messages on employer-issued cell phones, and the installation of GPS on private employee vehicles to track employee whereabouts. Finally, Part III will briefly summarize the state and federal statutes that apply to the different forms of employee surveillance conducted by public employers in New York State.

1. NEGOTIABILITY OF EMPLOYEE SURVEILLANCE

   An employer choosing to unilaterally carry out a method of employee surveillance must, in the first instance, ensure that such surveillance does not interfere with the right of its employees to negotiate the terms and conditions of their employment. (12) It can be difficult, however, for management to balance its obligation to supervise its employees, and maintain security of the workplace and its property, with its duty to negotiate. (13) This typically becomes an issue where a particular method of surveillance implicates employee job security, intrudes upon an employee's personal belongings or private information, or interferes with an employee's off-duty time. (14) Improper practice charges relating to employee surveillance can arise in varying contexts, depending on the type and location of the surveillance, the level of involvement required of the employees, and the purpose of the surveillance. (15)

   1. Video Surveillance: Investigatory Use

      A public employer's right to implement video surveillance in the workplace has been significantly curtailed by the Taylor Law and, as a result, it can be a particularly risky endeavor, even for legitimate investigatory purposes, as illustrated by Civil Service Employees Ass'n and Nanuet Union Free School District. (16) In Nanuet, PERB ruled that, in general, the decision by a school district to engage in videotape surveillance of a workplace for monitoring and investigating its employees is mandatorily negotiable under the Taylor Law. (17) This case dealt with two instances of investigatory video surveillance, both of which were deemed to affect the terms and conditions of employment: in the first instance, the District decided to conduct camera surveillance in hallways and other public locations, the footage from which could be used in the pursuit of disciplinary charges against unit employees; secondly, the District separately informed the union that it was "probable" that a camera would be placed in a common area outside the custodial room of one of the District's schools, in order to investigate how much time a particular custodian was spending off-task. (18) In the case of the surveillance of the custodian, the subject camera captured him (and another unit employee) entering and leaving the custodial room on thirty-nine occasions over the course of approximately six months. (19)

      In its decision, PERB distinguished the present case from Custodian Ass'n of Elmont, (20) where, in response to parental complaints about a bus driver's unsafe driving practices, a school district hired a private investigator to follow and videotape the driver over the course of two days. (21) In that case, the administrative law judge ("ALJ") ruled that the school district had no duty to bargain because the district's use of video surveillance was "investigatory and preliminary to the disciplinary action eventually pursued." (22) In Nanuet, PERB noted that "the length and scope of the surveillance was far-broader and more intrusive upon employee interests than the limited surveillance conducted in Elmont." (23)

      Ultimately, because the union's charge was untimely, PERB did not decide whether the District's use of video surveillance in Nanuet violated the Taylor Law. (24) However, the Nanuet decision is noteworthy for employers because it means that, in the school setting, where videotape surveillance is not integral to the employer's mission (as it would be, for example, in a correctional facility), a District's decision to implement extensive video surveillance is likely to result in the filing of an improper practice charge against the District. (25) Such a charge would require an ALJ to conduct a "fact-specific examination of employer and employee interests" in order to determine "whether the videotaping significantly or unnecessarily intrudes upon the protected interests of unit employees." (26)

      In reconciling Nanuet and Elmont, an important takeaway is that investigatory surveillance, if conducted over an unnecessarily long period of time, can impact working conditions in violation of the Taylor Law. (27) At this point, it is uncertain as to where PERB might eventually draw the line as to what is an acceptable period of time to record, given the current precedent of the two-day stakeout in Elmont and the six-month video investigation in Nanuet.

      Still, even if an employer's particular installation or use of video surveillance is a non-mandatory subject of bargaining, the employer's decision to use the tapes in disciplinary proceedings may still be subject to impact bargaining as it affects disciplinary procedures, which are mandatorily negotiable. (28) In Amalgamated Transit Union, (29) a public employer refused the union's demand to bargain the impact of using video footage from bus surveillance cameras in disciplinary proceedings. (30) PERB, in affirming the ALJ's finding, held that the employer violated its bargaining obligation when it refused to bargain the impact of using the video footage. (31)

   2. Video Surveillance: Non-Investigatory Use

      A pair of conflicting PERB decisions has called into question the propriety of using video cameras for the purpose of supervising employees or ensuring the security of the employer's premises.

      In City of Syracuse (1981), (32) the ALJ dismissed the union's complaint regarding the City's decision to install video cameras in a police garage. (33) In a sweeping opinion, the ALJ reasoned that, as long as employees are not required to participate in the recording process, a public employer is privileged to install and use a camera system "[b]y virtue of its accountability for public funds ... to supervise its employees, and to maintain the security of its property." (34)

      However, thirty years later, in 2011, a different PERB ALJ declined to follow the management-leaning rule articulated in City of Syracuse. (35) In Civil Service Employees Ass'n and Town of Clarkstown, (36) the ALJ held that the Town's installation of video cameras in the work areas of its highway garage was "little more than an enhanced investigatory tool to ascertain employee misconduct." (37) After balancing the employer's stated interest of protecting its assets "against the constant video monitoring of employee work performance and behavior with discipline as a stated consequence of such monitoring," the ALJ deemed the Town in violation of the Taylor Law for failing to negotiate the installation and use of the cameras. (38)

      Crucial to the outcome in Town of Clarkstown was the Town's statement that video footage could be used as evidence in a disciplinary proceeding if any employee was viewed on camera engaged in improper activity, since such a use would directly implicate employee job security. (39)

      As a result of the Town of Clarkstown decision, the extent to which a public school district may use video surveillance for noninvestigatory purposes is uncertain. Even if the district's stated purpose is safety or security, a decision to...