Is a manager overreaching by using the company's closed-circuit cameras to monitor and log which employees are complaining about work conditions?
Question: We are a small, 24-hour call center that deals with medical issues and other critical issues. As part of our controls to ensure that employees are not violating our callers'/clients' privacy rights, we have installed closed-circuit cameras to monitor the call-center floor. One of the supervisors is now using the cameras to monitor the employees who complain about work conditions (schedules, managers, etc.). The supervisor is also keeping his own personal log of who complained so that he can identify "troublemakers." Do you think we should have any concerns about the supervisor doing this?
Answer: YES -- you should be very concerned about what this supervisor is doing. Beyond the obvious fact that this supervisor is not using the cameras for their intended purpose -- and thereby is arguably violating a company policy -- supervisors should not take any action or behave in any manner that could be reasonably interpreted as "singling out" employees who have made complaints. This is because the law prohibits employers from treating anyone who brings a workplace complaint differently because they have complained.
It is also unwise for a supervisor to label anyone who has complained as a "troublemaker" on account of the fact that the person has complained. Doing so, and/or using cameras to monitor only those employees who have complained will undoubtedly invite allegations of unlawful retaliation.
Also, labeling employees who complain as "troublemakers", keeping a special log on them and/or singling them out for video surveillance will more than likely chill the company's complaint process and discourage employees from making legitimate complaints. Chilling the complaint process would be detrimental for your or any organization because it is important that employees be provided with clear avenues to make complaints, and that the avenues being provided be unencumbered by any reasonable fear of retaliation.
In addition, the supervisor's actions likely run afoul of the National Labor Relations Act. Section 7 of the NLRA specifically protects employees who engage in concerted activity. 29 U.S.C. § 157. Two or more employees engage in protected concerted activity when they discuss pay or work-related issues with each other. Id.
Even conduct by an individual can constitute concerted activity when that individual person is seeking to initiate or induce group action or when individual employees are bringing complaints to the attention of management. See Meyers Indus., Inc., 281 NLRB 882 (1986).
Therefore, threatening, punishing, or terminating employees because they engaged in protected concerted activities is in violation of the NLRA. National Labor Relations Board website, Employer/Union Rights and Obligations.
The case of Dayton Typographical Serv. v. NLRB, 778 F.2d 1188 (6th Cir. 1985) best illustrates the importance of not labeling employees who complain as "troublemakers" and/or not otherwise singling them out for different treatment.
In Drayton, an employee made complaints in front of others and was subsequently terminated. In reviewing the facts of the case, the NLRB held that it would make an inference that the employee was improperly discharged for engaging in concerted activities partly because the employer characterized that employee as "making trouble" on account of having made complaints.
Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.