'An overt surveillance system is going to be easier to justify than a covert system'
“Anytime you're dealing with privacy issues, it's always a balancing act with the interests of the employer on the one hand and the privacy interests of the employee on the other.
“They're always very fact-specific and depend on the particular circumstances in which complaints are brought.”
So says Stephen Torscher, a partner specializing in labour and employment law at Carbert Waite in Calgary, after Sobeys, the national grocery store chain headquartered in Stellarton, NS, was able to defend the presence of surveillance cameras in the employee lunchroom at a warehouse facility in Alberta.
Surveillance cameras at warehouse
The warehouse was located in a remote location near Balzac, Alta. The building had a large lunchroom used by most of Sobeys employees to eat, along with a separate lunchroom for employees of a contractor who worked onsite.
Sobeys had more than 200 surveillance cameras in the building covering various locations within the facility. They were all out in the open and none were hidden. Some only recorded footage when they detected motion, while others recorded continuously. The company posted signs at the building entrance informing employees of the cameras and employees were required to acknowledge that they were aware that the building was being monitored.
No one viewed the camera footage in real time – a security guard had access but was not expected to view it - and the recordings were downloaded to a hard drive in a locked computer room with 11 specified people authorized to view the recordings – which could only be accessed onsite, not remotely. The one non-managerial employee with access was responsible for locating missing pallets in the warehouse.
Otherwise, the recordings were only viewed if there was an incident in a specific area covered by cameras.
The reasonableness of surveillance cameras depends on a balance of the employer’s right to manage its operations and employees’ right to privacy, say an employment lawyer.
Surveillance policy
Sobeys had a policy covering the use of surveillance recordings that stated its purpose was to protect the reputation and resources of the company, ensure privacy and security of company information, and establish rules for the acceptable use of surveillance systems. The recordings were to be retained for at least 45 days and were then overwritten by new recordings.
One of the examples of acceptable use of recordings outlined in the policy was to “aid in the effective resolution of disputes which may arise in the course of disciplinary or grievance proceedings” and they were not to be used for measuring employee productivity.
Having a policy on how surveillance is going to be used can go a long way in justifying it, says Torscher.
“Having a good handle on why you're doing it is very important and notifying the employees that the surveillance is going to happen and where the cameras are would help the employer justify any kind of surveillance at an arbitration,” he says.
In early 2018, Sobeys installed two security cameras and reactivated an inoperative one in the main lunchroom. Management wanted them because there had been complaints of lunchroom theft at another Sobeys warehouse facility. Two of the cameras were at opposite ends of the lunchroom and were pointed at the eating area while capturing half of the vending machines. The third was focused on a wall of refrigerators used by employees to store their lunches.
An adjudicator found that outdoor surveillance cameras were legal but indoor ones that constantly monitored employees and could be used for disciplinary purposes were not.
Restrictions on use of recordings
The loss prevention manager approved the new cameras, but stressed that they were “not intended for fishing expeditions whereby management/supervisory personnel are using the cameras to seek out performance issues, policy violations, etc.”
The union grieved the installation of the lunchroom cameras in October 2021, arguing that it was an area where employees should be able to relax, have privacy, and take a break from being monitored. In addition, sometimes union meetings were held onsite in the lunchroom due to the size and location of the facility.
The union added that there was “virtually no concern of theft or breakage or injury while the employees are eating lunch” and noted that there was a manager and a supervisor with offices near the lunchroom, and supervisors took breaks there as well.
Sobeys argued that the union did not grieve the cameras when they were installed and waited more than three years to do it, so the grievance should be dismissed. It also pointed out two instances in 2020 and 2021 where there were fights in the lunchroom and the company was able to use surveillance footage to investigate. The lunchroom was where employees came together and any conflicts would escalate there, the company said, adding that the purposes of video surveillance was made clear to employees in the acceptable use policy.
The arbitrator disagreed with Sobeys that the passage of time was an issue, as the grievance did not relate to “a specific moment in time that demanded action.” Instead, it appeared that employees expressed a concern about being monitored in the lunchroom over time and the union decided it was time to press the issue. There was no indication that the union supported the use of surveillance cameras in the lunchroom, the arbitrator said, adding that Sobeys installed the cameras without any discussion with the union.
“The union hadn't done anything in that time to condone that the cameras were there or acquiesce to their presence, they just sort of took no position,” says Torscher. “When the issue was brought forward by a number of employees, that's when they raised their grievance and the arbitrator said that, in those circumstances at least, that was okay.”
A Quebec arbitrator found that cameras that continuously monitored employees were reasonable in a meat processing plant to protect against contaminants.
Overt, not covert, surveillance
The arbitrator noted that Sobeys made the surveillance cameras known to employees with signs and during orientation. In addition, if there were no incidents in the lunchroom, it’s likely that no one would ever view the footage – the security guard was too busy and the clerk responsible for missing pallets would probably not look at lunchroom footage.
In cases of workplace surveillance, the use of cameras has to be reasonable and the way that the cameras are being used also has to be reasonable, says Torscher.
“[Sobeys] went through justifications for why the cameras were needed and talked about previous incidents that had happened in the workplace where the cameras had proven very useful in resolving conflict between employees before, and other incidents that happened at other facilities in which surveillance would have been useful – that was used to justify putting the cameras in there in the first place,” he says.
“And then the actual policy about how the cameras would be used - there wouldn't be live monitoring of the cameras, so that was a factor that militated towards protecting the privacy of the employees, because there isn't somebody constantly watching over you at all times.”
“There was only a limited number of people who would have access to the recordings and people weren't just randomly looking through the surveillance footage unless there was an incident that they needed to review,” adds Torscher. “Between that and the policy with respect to the use of the surveillance footage, the arbitrator was convinced that this wasn't going to be an undue intrusion on the privacy of the employees.”
Signs about surveillance in lunchroom
The arbitrator found that it was reasonable for Sobeys to have the cameras in the lunchroom. However, Sobeys was ordered to post a sign in the lunchroom and include statements in its loss prevention policy and employee handbook for the facility that included:
- References to the existence of the cameras
- An explanation that the recordings were not accessible remotely and only by limited personnel
- A statement that the recordings were only accessed when there was an incident that required reviewing for an investigation
- An explanation that the recordings are overwritten by new recordings after no more than six months, unless required for an investigation.
“Obviously, having an overt surveillance system is going to be easier to justify than having a covert surveillance system with hidden cameras,” says Torscher. “I think it's important for an employer, before they make the decision to install cameras, to consider what the reasons for installing those cameras are – if it’s to try to monitor performance, that might be harder to justify than other objectives [like safety].”
