Privacy Issues in the Community College Workplace

In addition, an educational institution cannot simply install security cameras without providing notice and an opportunity for the relevant employee associations to bargain and negotiate the effects of a decision to install security cameras. 467 This is the case regardless as to whether the cameras are overt or covert and whether the cameras are install in public or private portions of the premises. 468 While there are limitations on what recording an employer can do at the workplace, there are also limitations on what types of recordings an employer can prohibit of employees in a workplace. In the National Labor Relations Board (“NLRB”) decision Whole Foods Market, Inc. 469 , the Board prohibited a private employer from having a “no-recording” rule that prohibited employees audio and/or video recordings in company meetings without prior approval and also prohibited recording conversations with a tape recorder or other recording device unless the employee received prior approval from store or facility leadership. The Board found that the rules, while not expressly prohibiting employees from engaging in protected activities, could be reasonably construed by employees to prohibit concerted protected activity. This is because there are many situations where an audio and/or video recording may used to promote mutual aid or protection such as recording picketing, documenting unsafe workplace equipment, or documenting the inconsistent application of workplace rules. Therefore, the rules were required to be rescinding. While the NLRB decision is not binding on California public agencies, PERB often uses decisions issued by the NLRB when interpreting issues arising in the public sector and thus it is important to be aware of how the NLRB is interpreting these issues. I. T RACKING D EVICES Various tracking devices have entered the market: Radio Frequency Identification (RFID), Global Positioning Systems (GPS), and Event Data Recorders (EDR). These devices are available to private individuals for their personal use. For example, cellular telephone companies are now providing GPS as part of their services. However, employers should proceed with caution in using these technologies. Generally, individuals in California are prohibited under Penal Code section 637.3 from using electronic tracking devices to determine the location or movement of a person. 470 An exception exists that allows registered owners, lessors, or lessees of vehicles to use electronic tracking devices to track their vehicles. 471 In other words, if the agency owns or leases a vehicle, that agency may use GPS, or similar electronic tracking devices, to monitor the location or movement of its employees. An exception also applies to the lawful use of a tracking device by a law enforcement agency. 472 In United States v. Jones , the United States Supreme Court held that the government's use of a GPS device, without a warrant, during a criminal investigation, to monitor a vehicles movement violated the Fourth Amendment to the U.S. Constitution 473

“Telematics” refers to sending, storing and receiving information through telecommunication devices. 474 Telematics once meant the merging of computers and telecommunications. 475

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 153