Should you add monitoring devices to your company vehicles?
Wednesday, June 08, 2016
Highway accidents remain the leading cause of work-related deaths and also carry tremendous personal, social and economic costs. The good news is new technologies in on-board safety monitoring systems are being developed and implemented in both commercial fleets and private vehicles to offer the potential to further improve safety.
These technologies allow employers to collect safety-specific information related to employees' on-the-road behavior and performance — but there are some real risks and limitations employers should know about before installing them.
Why monitor at all?
Employers may have a number of reasons for installing monitoring devices in vehicles. At a minimum, the installation of such devices could result in the promotion and encouragement of safer driving practices simply because drivers know they are being monitored.
The use of these devices can also result in more efficient routing of vehicles or a decrease in unauthorized vehicle usage and unscheduled stops. Data from these devices could be used as teaching tools to reduce the likelihood of future accidents.
Similarly, in case of an accident, data from a monitoring device could be used to establish how the accident occurred and confirm the driver was not at fault. Or, in the event of a vehicle theft, the data could be used to find the vehicle or identify the thieves.
Know the legal limitations
The use and monitoring of these devices and accessories is governed by numerous federal and states laws and regulations.
For example, the Federal Motor Carrier Safety Administration permits them if they do not decrease the safety of the motor vehicles on which they are used, and if they are equipped in accordance with specific requirements set out in the regulations. Among other things, those regulations require that devices must be mounted six inches below the top of the windshield, outside of the area swept by the windshield wiper blades, and outside the driver's sight lines to the road, highway signs and signals.
A majority of states have also enacted laws that govern the use of such devices and accessories. Generally, most states do not permit any device (for surveillance or otherwise) if they obstruct or reduce the driver's view, unless a specific exemption applies. This is important for employers to note because, unlike the older cameras attached at the top of the windshield, the driver performance monitoring devices placed at the bottom of the windshield require an exemption.
States may include additional requirements. For example, in California, a video-recording device is only permitted in a vehicle if it can monitor driver performance to improve safety, and has the capability of recording "audio, video and G-Force levels continuously in a digital loop."
The device must automatically save the video when triggered by an unusual motion or crash, and cannot store more than 30 seconds of video, audio and other data before or after the "triggering event." The device must be outside of the airbag deployment zone and in a seven-inch square in the lower right corner of the windshield, or in a five-inch square in the lower left corner of the windshield.
In addition to the laws directly regulating the use of monitoring devices, the federal government and most state governments have privacy and wiretapping statutes or common laws that restrict or prevent recording an individual's voice and/or image without prior consent.
Because regulations and exemptions vary from state to state, you should consult with counsel before proceeding. Also, consider establishing a written policy to notify your employees of the existence of cameras or other monitoring devices so as to not violate privacy rights.
Make sure you meet any union obligations
At a minimum, notice to employees of the installation and use of such devices would be appropriate and expected by most employees.
However, when a union represents employees in a particular workplace, the employer has a statutory duty not to make unilateral changes in the terms and conditions of employment without bargaining with the union. That duty to bargain may include bargaining with the union about the installation and use of monitoring devices in vehicles, particularly where the monitoring may lead to discipline or discharge of employees.
Have a records retention policy and follow it
You may also have an affirmative duty to preserve all recordings and reports for a certain length of time after a "triggering event." Because a video recording captured by the camera, and any report associated therewith, could be considered discoverable information in litigation and may have to be produced to the complaining party, failure to preserve may result in litigation sanctions.
If you use such devices, you should have a retention policy and follow it. Remember a complaining party potentially could request all preserved recordings and use the evidence to argue that you have a history of employing bad drivers. If you retain information for an extended time, you could end up holding onto evidence that shows a specific driver has a history of accidents or unsafe driving practices, or that you knew or should have known that the driver exhibited risky behavior.
As with most new and developing technologies, there are pros and cons to using them. The purpose of this article is to make employers consider both the risks and gains to their business before installing monitoring devices in vehicles.
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