On February 13, 2014, the California Attorney General’s office published Opinion No. 12-1101 in response to a request from a member of the state senate regarding surveillance of employees. The request from the senate read as follows: “Does continuous videotaping surveillance of truck drivers during their on-the-job driving constitute a misdemeanor under Labor Code section 1051 [which makes it a misdemeanor for employers to require that employees or applicants be photographed or fingerprinted in certain circumstances] where the video file is inspected by a third party and used as a basis for discipline by the driver’s employer?”
Striking yet another blow employee privacy rights, the Attorney General’s office answered in the negative. According to the opinion, Section 1051 is an “outdated statute” which “fell out of use after the 1935 enactment of the National Labor Relations Act.” Therefore, videotaping surveillance of drivers is perfectly legal, provided that the third party is an agent of the driver’s employer who is videotaping and inspecting the file for the sole benefit of the driver’s employer, and that the file is furnished only to the driver’s employer. In support of its position, the Attorney General’s office noted that California Vehicle Code section 26708 expressly permits videotaping systems in commercial vehicles, consistent with federal motor safety regulations.