Employee Uniforms…With Eyes – Key Considerations Regarding Employee-Worn Bodycams In The Workplace

Last month, employees of a grocery store in Toronto's St. James Town neighbourhood were seen wearing bodycams during their shifts.¹ A representative of the grocery store stated that the use of bodycams is being introduced at this location to reduce accounts of harassment and assault experienced by employees and deter shoplifting, among other things. The representative stated that bodycams have already been introduced at other locations, and since then, there has been a significant decrease in violence and aggression towards employees at those locations.

While the initiative is aimed at keeping employees safe, it also raises other key legal issues that impact employees. Below is a summary of the workplace law issues raised by employee-worn bodycam usage, citing the Toronto grocery store example to illuminate the themes more broadly in non-unionized workplaces.

The Health and Safety Perspective: The most commonly cited reason for employee bodycams is that they deter harassing and violent behaviour. Under Ontario's Occupational Health and Safety Act, employers must take every precaution reasonable in the circumstances to protect workers, including from violence and harassment in the workplace. If:

• a worker is in a public-facing role;
• instances of violence or harassment often occur; and
• there is evidence that bodycams deter this conduct,

then a mandate for workers to wear bodycams is consistent with the employer's duty to maintain a safe workplace.

However, some argue that bodycams could make workers more vulnerable and cause people to target them (e.g. shoplifters wanting to physically remove bodycams off workers), in which case, the bodycams are inconsistent with the employer's duty. If employers are considering implementing bodycams, they should assess whether there is actual evidence to support the argument that they reduce instances of violence and harassment.

Collection of Data Beyond Employee Safety: If bodycams are running constantly, they will surely capture non-safety-related interactions in the workplace, including employee misconduct and time theft. With proper notice to employees, that footage can be used to impose discipline, including terminating employment for cause. An employer should have clear policies that address the possible uses of the footage – see below.

Employer Transparency is Not Optional: Many employers in Ontario must have a policy that sets out if, and how, employees are electronically monitored.² In this case, an employer mandating the wearing of bodycams by employees should have a policy that clearly outlines how and in what circumstances the bodycams are activated and capture footage, as well as all of the purposes for which the footage can be used by the employer (i.e. to review the efficacy of bodycams as a deterrent of violence and harassment; to impose discipline; etc.). While notice of the bodycams would be required (which would be inevitable, given the size of most bodycams) even for employers that aren't required to have an electronic monitoring policy, employers are not required to obtain employee consent to implement the use of employee bodycams.

From a privacy law perspective,³ employers should have a policy that clearly sets out:

• how and where the footage is stored;
• how long such footage is retained;
• who has access to such footage; and
• when and for what reasons the footage can be accessed.

Generally, the footage should be stored in a secure location with select individuals having access on a "need to know" basis only, and there should be protocols for destroying such footage.

Encouraging Compliance: Employers should ultimately consider whether mandating the bodycams for all employees in their workplace is necessary to achieve their deterrent effect to reduce violence and harassment. Though it may achieve this purpose with public-facing employees, it would likely not be reasonable to implement in an accounting firm, or for employees working in a grocery store, but who work in the back storage area. Where appropriate, employers should consider providing employees with education about bodycam use and an opportunity for employees to opt out of wearing the bodycams, should they elect to do so.

Considering other options: While employers can collect employees' personal information for reasonable business purposes, the least amount of information necessary should be collected to avoid privacy concerns, amongst other things. If an employer is truly committed to improving employee safety, they should be implementing measures other than, or in addition to, bodycams. For example, the use of a "panic button" at each cash register that sounds an alarm or ensuring that employees working in the aisles work in pairs may be helpful and would not engage the same privacy related concerns.

Key Takeaways

Ultimately, the circumstances and history of events at a workplace might support the use of employee-worn bodycams. If an employer is considering implementing same, it must balance meeting its duty to take all reasonable precautions to protect workers with minimizing privacy intrusion and other unintended consequences. To achieve this, employers should:

• Obtain evidence regarding the deterrent effect of the use of bodycams, if there is any.
• Develop a written policy that notifies employees about the activation of bodycams, the permitted uses of bodycam footage, and the organization's protocols for storing and accessing such footage.
• Communicate openly with employees about the above policy that's implemented.
• Provide training to employees on health and safety protocols and the use of bodycams.

Footnotes

1. Credit goes out to Tyler Cheese of CBC news who wrote about the issues raised in this blog last month and gave me the inspiration for it. The CBC article can be found here.

2. The policy requirement applies to employers with 25 or more employees. See the Ministry of Labour's guidance on electronic monitoring policies here.

3. I'm not a privacy lawyer, so I have not commented on customer privacy rights that are triggered by employee-worn body cams.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.