Bargaining and Employee Surveillance
By John R. Roche - Friday. October 16, 2020
In the public sector generally and in law enforcement specifically, employee surveillance has become increasingly more prevalent and important. Where there is a collective bargaining agreement in place, employees and their unions have the right to bargain with the employer over surveillance issues. Whether a union can bargain with a public employer over the decision to implement surveillance will depend on several factors, such as the mission of the employer, whether the surveillance is overt or covert and what is being surveilled and why. There is little question, however, that the union has the right to bargain over the impact of the employer’s decision on its employees.
In jurisdictions that permit collective bargaining for its public employees, such as Illinois, a balancing test is generally applied to determine whether an issue is a mandatory subject of bargaining. That test usually consists of determining whether the issue affects the employees’ terms and conditions of employment and, if so, whether the issue affects the employer’s inherent managerial rights. If it does, then the benefits of bargaining will be weighed against the burdens. In those instances where surveillance goes to the heart of the employer’s mission, such as at a corrections facility, the balance may come down against bargaining over the decision to surveil. If surveillance is not related to the employer’s core mission, it is more likely the employer will be required to bargain over the decision to surveil its employees. However, what the employer does with the collected information is an entirely different matter and employers will be required to bargain over the impact of the decision to surveil. One way or another, employers in these jurisdictions will have to bargain with the union, upon timely demand, over the decision to implement the surveillance or the impact of that decision.
Employers will benefit from such bargaining. It is an opportunity for the employer to get another and different view of potential problems and learn of possible solutions to those problems - problems and solutions it may have overlooked. Having the employees involved in the security and safety of their workplace serves the interest of the employer, the employees, and the public. Proactive discussions build and maintain a healthy, vibrant, and productive workplace. The presence of collective bargaining provides a more developed forum to exchange information and solve conflicts.
It is very important for employers to front their desire to monitor workplace areas. Where overt surveillance is implemented or when a union learns of covert surveillance, it is important for the union to make a timely demand to bargain. As bargaining begins and the parties move toward developing a protocol, the union will have a number of questions. The answers to those questions will form the basis of an understanding between the parties over employee monitoring. The questions asked could include:
What is the purpose of the surveillance?
Who is going to be surveilled?
What areas will be surveilled and during what times?
What notice will be given to employees of surveillance?
What is the retention schedule of the collected information?
Under what circumstances will this retention schedule be extended?
How will the information be stored and protected?
Who has access to this information?
How is this information accessed?
Under what circumstances will this information be disclosed to third parties?
Will personal information be redacted?
What notice will be given to the employee that information will be conveyed to a third party?
Is there any procedure for employees to discuss redaction?
Is there a time limit for doing so?
How and under what circumstances will this information be reviewed?
How often will the collected information be reviewed?
Who will review this information?
Will this information be reviewed on a regular basis (i.e., will someone be assigned to regularly review this information)?
How and under what circumstances will this information be disclosed to the public?
What training will be provided to the employee regarding the use of the surveillance equipment?
What training will be provided regarding the employees’ interaction with the surveillance equipment?
Under what circumstances will the surveillance equipment be activated and turned off?
What will be the consequences of failing to properly use the equipment (i.e., failing to timely activate, etc.)?
Will the collected information be used for employee discipline and under what circumstances?
Can an employee, upon request, review this information?
Can other employees or the public, upon request, review this information?
Can this information be disclosed under applicable FOIA laws?
Will the employee be notified of disclosure under the applicable FOIA laws?
Are employees exposed to third party surveillance?
Under what circumstances will third party surveillance be used for discipline?
Will this material potentially be used for training purposes?
If the material will be used for training purposes, can the employee challenge this?
Bilateral discussions seeking the answers to these questions will lead to a greater understanding between the parties. The more employees know about what is happening in their workplace and why, the less opportunity for misunderstanding between employees and their employer. By fronting problems and exchanging ideas about solutions to those problems, the parties can arrive at reasonable protocols. Answering the questions posed above can form a template for a more thorough understanding. With this understanding, surveillance, particularly in public safety, can benefit the safety and security of all involved.