Employees Lose Appeal Protesting Surveillance Camera in Restroom

Union workers who have agreed to video surveillance as part of an employment contract cannot expect privacy even in the lavatory, a divided federal appeals panel in San Francisco ruled Wednesday.

The “potty privacy” controversy exploded in 1997 when workers at a Consolidated Freightways truck terminal in the Riverside County community of Mira Loma discovered video surveillance cameras hidden in restrooms at the 1,000-employee facility.

Consolidated Freightways, a large trucking company based in Menlo Park, Calif., said it installed the cameras to try to stop the sale and use of drugs in the restrooms and aimed the cameras away from urinals and toilets.

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals upheld a lower court’s dismissal of the invasion-of-privacy claims of Consolidated Freightways employees.

U.S. District Judge Irving Hill had ruled that the collective bargaining agreement between Consolidated Freightways and the Teamsters’ Union preempted California privacy laws, which forbid placing cameras or two-way mirrors in restrooms.

Judges Pamela Ann Rymer and Diarmuid F. O’Scannlain said they did not condone Consolidated’s surveillance but upheld the dismissal of employees’ claims of invasion of privacy and infliction of emotional distress because the collective bargaining agreement allowed both video surveillance and drug testing.

But Judge Raymond C. Fisher dissented in part, saying that Consolidated’s restroom surveillance was a clear violation of California law and that collective bargaining agreements cannot contract for illegal activities.

A Consolidated Freightways spokesman applauded the dismissal as “ratifying our strong belief that these matters didn’t belong in a court” and were best handled through existing grievance procedures.

Matthew Taylor, attorney for some of the employee-plaintiffs, said the ruling “allows Big Brother to assume its corporate guise with impunity. This affects every union employee in California and probably the western United States.” Taylor said he is evaluating the potential for appeal.