Consolidated Freightways Spies on Employees

June 13, 2000 by Beeson Tayer & Bodine

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

California Constitution, Art.1, § 1

The Constitutional right to privacy was adopted by the voters in 1972, and provides protection against both governmental and non-governmental assaults on privacy. For example, the right has been invoked to prohibit a school from releasing an individual’s academic transcript without consent. However, your workplace rights to privacy have been severely restricted by a recent decision of the Ninth Circuit Court of Appeals, which found that clearly illegal clandestine surveillance of employees in the workplace restrooms did not violate the employees’ right to privacy under the California Constitution.

The case arose after Teamsters employed by Consolidated Freightways (CF) discovered that the company had installed video cameras and audio listening devices behind mirrors in its employee restrooms. CF said it was spying on its employees in order to detect drug use. This surveillance was clearly illegal under the California Penal Code. The Union grieved the employer’s surveillance actions and the employees filed a class action lawsuit alleging an invasion of their reasonable expectation of privacy while using the restroom.

While noting that violation of the constitutional right to privacy requires both a “reasonable expectation of privacy” and an “unreasonable intrusion” and CF’s restroom mirrors met both tests, the Court dismissed the employees’ suit because the National Master Freight Agreement states “The employer may not use video cameras to discipline or discharge an employee for reasons other than theft of property or dishonesty.”

The Court rejected the argument that employers cannot invoke their collective bargaining agreement as a shield against violations of state law, holding that because of the National Master Freight Agreement language, the employees had a reduced expectation of privacy in the restroom.

The one judge on the three-judge panel who refused to go along with the decision aptly noted that CF’s conduct brought the workplace a step closer to the world described in George Orwell’s novel, 1984.

For Teamsters working under the National Master Freight Agreement, this decision severely restricts claims they may have under the California Constitution to privacy. Employees may still have remedies under the contractual grievance and arbitration provision. For unionized employees working under other contracts, the impact is less immediate and if the contract language is not as specific as the National Master Freight Agreement they may have a better claim under right to privacy.

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