In the name of vehicle safety, California Assembly Bill 1942 will permit among other things “driver cams” to be mounted on vehicle windshields beginning on January 1, 2011. Formally known as “video event recorders,” these devices can continuously record audio, video, and G-force levels in a digital loop in order to help identify bad driver habits or other factors that lead to vehicle accidents. Well intended, the new law certainly will create a range of privacy issues for employers, particularly those in the transportation and delivery business.
Specifically, the law will permit the monitoring of driver performance through video event recorders so long as the following are satisfied:
- Size limitation – The recorder must bemounted either (i) in a seven-inch square in the lower corner of the windshield farthest removed from the driver, (ii) in a five-inch square in the lower corner of the windshield nearest to the driver and outside of an airbag deployment zone, or (iii) in a five-inch square mounted to the center uppermost portion of the interior of the windshield.
- Notice requirement – A notice must beposted in a visible location informing passengers that theirconversations may be recorded.
- Length of recording – No more than 30 seconds maybe recorded before or after a triggering event, e.g., a collision.
- Driver for hire rights – Employers that install a video event recorder in vehicles of their employees driving for hire must provide those employees with unedited copies of the recordings upon the request of the employee or the employee’s representative. These copies must be provided free of charge to the employee and within five (5) days of the request.
There are a number of obvious issues that face employers interested in utilizing video event recorders, such as not knowing what information will be captured by these devices and how to discipline employees who violate policy as shown in the recording. There are other less obvious issues which employers should consider when deciding to implement this technology.
For example, the law does not provide a period after which employees can no longer request a copy of the recording. This raises the question of how longrecordings must be maintained. Another concern is whether information captured in a recording could be used against the employer, such as in a wage and hour class actions or violations of common carrier or vehicle safety requirements. Because the law is designed to address vehicle safety, a question exists as to whether the law implies a training requirement on employers aware of bad driving habits of employees from the recordings.
For these and other reasons, employers ought to think carefully before implementing this technology.
