Videotaping of Employee Drivers is Not a Crime. The Endless Passing of New Laws is.

In a recently issued opinion, the Attorney General of California concluded that an employer may continuously videotape its drivers without committing a crime. I suspect many readers are thinking; “A crime!” Yes, the videotaping could be considered a crime under Labor Code section 1051. While the Attorney General’s opinion is sound, it demonstrates the extent to which outdated laws can create new legal issues. The opinion focuses on meaning of a law that was passed in the early part of the last century. The statute states: Except as provided in Section 1057, any person or agent or officer thereof, who requires, as a condition precedent to securing or retaining employment, that an employee or applicant for employment be photographed or fingerprinted by any person who desires his or her photograph or fingerprints for the purpose of furnishing the same or information concerning the same or concerning the employee or applicant for employment to any other employer or third person, and these photographs and fingerprints could be used to the detriment of the employee or applicant for employment is guilty of a misdemeanor. Section 1051 was originally enacted as Penal Code section 653e with the purpose of preventing blacklisting of pro-union employees. In 1928, the Labor Commissioner recommended that section 653e be amended stating: The blacklisting law should be amended to prohibit the practice of fingerprinting and photographing of employees and applicants for employment for purposes of interfering with their future employment. It has been found that organizations of employers are requiring all employees employed by their members to go to certain private detective agencies to have their fingerprints and photographs taken, with the understanding that no one is to be employed in the particular trade or calling but those men approved by this detective agency. Such a practice is so susceptible of abuse as to be dangerous to the public welfare, and legislation is necessary to combat it. The Legislature adopted the recommendation and the prohibition against fingerprinting and photographing eventually made its way into Labor Code section 1051. The statute and its anti-blacklisting purpose became largely irrelevant after the passage of the National Labor Relations Act in 1935. It did not, however, lose its place in the ever growing number of California statute books where it has remained largely unused for over 80 years. Fast forward to 2014. Because of technological advancements it has become a somewhat common practice of placing video cameras in buses and trucks to observe employee drivers for safety and training purposes. Some clever person noticed that the videotape created might be a “photograph” for purposes of section 1051 and mean that employers using cameras are guilty of a crime! It is not an unreasonable reading of the statute. Ultimately, the Attorney General did not adopt that reading, but had to work to avoid it. The Attorney General noted that the Legislature had specifically amended section 26708 of the Vehicle Code in 2012 to permit the use of windshield mounted cameras in commercial vehicles. In an overly generous gesture to the Legislature, Attorney General stated “We presume that the Legislature was aware of all of its statutes, including Labor Code section 1051, when it amended Vehicle Code section 26708 to permit videotaping systems in commercial vehicles.” Yet, the Legislature made no mention of section 1051 during the process of amending section 26708 or the possible conflict that exists. It is highly likely, given the ridiculous number of statutes on the books, that those working in the Legislature completely forgot about section 1051 and never even gave it any thought. Legislators are under the misimpression that passing new laws solves problems. They are in such a rush to gain the favor of special interest or to gain the notoriety for “legislative accomplishments” that they too often fail to account for conflicts with existing laws. The massive number of existing laws makes the problem worse. It is time the Legislature slowed down the process for passing new laws and focused time on the removal of outdated laws. It is possible that Senator Jerry Hill who requested the Attorney General’s opinion was doing just that. One can only hope. The Attorney General’s Opinion can be found at https://oag.ca.gov/system/files/opinions/pdfs/12-1101.pdf