In Opinion of Harris (12-1101) the office of the California Attorney General was asked to consider whether continuous surveillance videotaping of truck drivers during their on-the-job driving constitutes a misdemeanor under Labor Code section 1051 where the video file is inspected by a third party and used as a basis for discipline by the driver’s employer. Labor Code section 1051 provides “Any person or agent or officer thereof, who requires as a condition precedent to securing or retaining employment, that an employee or applicant for employment be photographed or fingerprinted by any person who desires his or her photograph or fingerprints for the purpose of furnishing the same or information concerning the employee…to any other employer or third person, and these photographs and fingerprints could be used to the detriment of the employee or applicant for employment is guilty of a misdemeanor.” The Attorney General concluded that such continuous videotaping does not constitute a misdemeanor under the Labor Code.
The practice of continuous videotaping in the commercial and municipal transportation industries is a common practice. The cameras are typically operated by a “system operator” – a third party who is under contract with the driver’s employer. Typically, the footage is recorded in a continuous loop, overwriting previous footage unless the vehicle undergoes a triggering event such as hard braking or a sharp turn. When a triggering even occurs, the footage that has been recorded for some set period of time is preserved. The employer is then in a position to use the video file for training or disciplinary purposes. The system operators hold the video recordings confidential and are only made available to the driver’s employer.
Section 1051 is rooted in former Penal Code section 653e, an “anti-blacklisting law” that was enacted in 1913. In general, “[t]he legislation prohibited an employer from attempting to prevent a former employee from obtaining employment with any other person by misrepresentation.” In 1928, the State Labor Commissioner recommended that section 653e be amended to prohibit the practice of fingerprinting and photographing of employees and applicants for employment for purposes of interfering with their future employment. The following year, the Legislature amended Penal Code section 653e to add the prohibition against compelled photographs or fingerprints which is now found in Labor Code section 1051.
Of importance to the Attorney General in making its ruling is the fact that the photographer is not the employer itself. Rather, it is the employer’s agent who is under contract with the employer regarding the recording of the images and the subsequent use of the images. Both the employer and the system operator desire the images for the “purpose of returning the image to the employee’s own employer.” The statute, by contrast, prohibits the taking of fingerprints and photographs “for the purpose of furnishing the same…to any other employer or third person…” .” [emphasis in original.] The Attorney General concluded that there is no violation under the plain terms of the statute under the circumstances presented.
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