A manager texting one of his drivers who covered the truck’s inward facing camera while stopping for lunch – “you can’t cover the camera it’s against company rules” – is not unlawful under the National Labor Relations Act (NLRA), according to a recent decision by the D.C. Circuit Court of Appeals.

A practice that has a reasonable tendency to coerce employees in the exercise of their rights under the NLRA is unlawful, according to National Labor Relations Board (NLRB) precedent. An employer’s creating an impression that it is surveilling employees while exercising their rights under the NLRA may constitute such coercion, according to the NLRB. In Stern Produce Co., Inc. v. NLRB, the Board argued the manager’s texting created such an impression. The D.C. Circuit Court of Appeals disagreed.

Like many companies managing a fleet of vehicles, in this case delivery trucks, Stern Produce Co. equips its trucks with dash-cams and telematics technologies. These systems can serve important functions for businesses – help to ensure safe driving, protect drivers and the businesses from liability for accidents for which they are not at fault, improve efficiencies through tracking location, etc. They also raise significant privacy issues, not the least of which is through inward facing cameras.

Stern required drivers to keep truck dash-cams on at all times, unless authorized to turn them off. While driving a truck for Stern, Ruiz parked for a lunch break and covered the truck’s inward facing camera. Hours later, Ruiz’s manager sent him a text: “Got the uniform guy for sizing bud, and you can’t cover the camera it’s against company rules.”

Perhaps in a move to further the positions outlined in a November 2022 memorandum concerning workplace surveillance, the Board’s General Counsel issued a complaint, alleging that the text created an impression of surveillance of organizing activities by making Ruiz aware that he was being watched. According to the Administrative Law Judge, the text did not create an impression of surveillance, but amounted to “mere observation” which was consistent with “longstanding company policies” about truck cameras. Those policies included Stern’s handbook which reserved for Stern the right to “monitor, intercept, and/or review” any data in its systems and to inspect company property at any time without notice. The handbook instructed drivers that they “should have no expectation of privacy” in any information stored or recorded on company systems, including “[c]losed-circuit television” systems, or in any company property, including vehicles. The company also maintained a manual for drivers that addressed the telematics and dash-cam technologies in their trucks. Specifically, the manual states that “[a]ll vehicle safety systems, telematics, and dash-cams must remain on at all times unless specifically authorized to turn them off or disconnect.”

The Board disagreed. Ruiz was a known supporter of a union organizing drive and had previously been subjected to unfair labor practices. Due in part to this history, the Board held the surveillance was “out of the ordinary” and argued the manager had no justification for reviewing the camera as he had done so in the past only in connection with safety concerns.    

Stern’s handbook and driver manual proved to be important to the D.C. Circuit’s analysis. The court noted that drivers were aware of the potential monitoring through the dash-cams and that those cameras must remain on at all times. The Board’s position that there was no evidence that Ruiz knew these policies when he covered the camera was “nonsense,” according to the court. Beyond the policies, the court reasoned that a driver would not have a basis to believe he was being monitored for organizing activities when (i) the driver knew he could be monitored in the vehicle at all times, and (ii) there was no evidence of union activity going on in the small cab of a delivery truck.

It is worth noting that the court recognized that elevated or abnormal scrutiny of pro-union employees can support a finding of impressions of surveillance. That was not the case here, even with Ruiz being a known supporter of union organizing efforts. The manager’s one-time, brief text was, according to the court, consistent with company policy, and did not suggest Ruiz was singled out for union activity. The Board did not satisfy the coercion element.

Takeaways from this case

The ubiquity and sophistication of dash-cams and similar monitoring and surveillance technologies raise a host of legal, compliance, and other issues, both in and outside of a labor management context. While focused on a potential violations of a worker’s rights under the NLRA, there are several key takeaways from this case beyond labor relations.

  • Understand the technology. This case considered a relatively mundane feature of today’s dash-cams – video cameras. However, current dash-cam technology increasingly leverages more sophisticated technologies, such as AI and biometrics. Decisions to adopt and deploy devices so equipped should be considered carefully.
  • Assess legal and compliance requirements. According to the court in this case, the policies adopted and communicated by the employer were adequate to apprise employees of the vehicle monitoring and mandatory video surveillance in the vehicle. However, depending on the circumstances, more may have been needed. The particular technology at issue and applicable state laws are examples of factors that could trigger additional legal requirements. Such requirements could include (i) notice and policy obligations under the California Consumer Privacy Act, (ii) notice requirements for GPS tracking in New Jersey, (iii) potential consent requirements for audio recording, and (iv) consent requirements for collection of biometrics.
  • Develop and communicate clear policies addressing expectation of privacy. Whether employees are working in the office, remotely from home, or in a vehicle, having clear policies concerning the nature and scope of permissible workplace monitoring is essential. The court in Stern relied on the employer’s policies significantly in finding that it has not violated the NLRA.
  • Provide guidance to managers. Maintaining the kinds of written policies discussed above may not be enough. The enforcement such policies, particularly in the labor context, also could create liability for employers. In this case, more aggressive actions by the manager directed only at Ruiz could have created an impression of surveillance that coerced the employee in the exercise of his rights. Accordingly, training for managers and even an internal policy for managers may be useful in avoiding and/or defending against such claims, as well as other claims relating to discrimination, invasion of privacy, harassment, etc.
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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.