Will it help? Loblaw, TTC try out body-worn cameras with workers

“What are these cameras going to see? What kind of benefit or pain is that going to cause the employer?”

So says Filip Szarduski, an employment, labour, litigation and contracts lawyer at Spring Law in Toronto — and it’s a question being asked by many when it comes to the issue of body-worn cameras (BWCs). 

Used for years by police forces around the world, the bodycams are now being rolled out in other sectors in Canada such as retail and public transport.

Loblaw recently announced it is launching a three-month pilot at a Real Canadian Superstore and a Shoppers Drug Mart location in Calgary and Saskatoon, for example.

Why? “To increase safety and reduce risks for our customers and colleagues in certain areas where criminal activities are more prominent,” said a Loblaw spokesperson. “Violent encounters at retail locations across the country have increased dramatically in recent years.”

Similarly, fare inspectors and special constables who work for the Toronto Transit Commission (TTC) are using body-worn cameras as part of a pilot project.

While the technology offers the potential for greater accountability, the legal and practical challenges it introduces cannot be overlooked, such as employee privacy, management’s purview, human rights, and contractual breaches.

Do BWCs help with workplace safety?

The primary driver for employers implementing BWCs is often occupational health and safety compliance, according to Szarduski. Employers are frequently “forced into situations where, if they don’t do something to protect their workers, they are potentially going to breach the Occupational Health and Safety Act by not maintaining ‘a healthy and safe workplace.’”

As a result, using these devices to hopefully deter or deflate a volatile situation that could threaten worker safety makes sense, along with recording the interaction.

On a side note, the camera footage may inadvertently capture worker misconduct such as sexual harassment, he says.

“But, would that employee have brought it forward, and would that other employee who committed such an act, see it coming? That has the potential to upset more than just the party who committed the act as well. So, there’s an interesting nuance [and] complications that could happen as a result of this.”

Citing research from Cambridge University, Christopher Schneider says the question is whether the presence of the cameras has reduced police use of force and civilian complaints about police?

“The answer is sometimes yes, sometimes no… the evidence is mixed,” says the professor, coordinator, criminal justice certificate at Brandon University in Manitoba.

"Rolling out and spending money on body-worn cameras for retail workers is not going to necessarily lead to reductions in violence or bad behaviour.”

The beliefs that cameras recording people will make them less likely to engage in violence or theft is “profoundly untrue,” he says, citing the widespread use of closed-circuit television cameras (CCTV) as an example.

“This has not stopped violence in retail establishments… and it certainly has not stopped theft.”

Even people who are recorded by cellphones are not necessarily deterred, says Schneider, and the costs of the body cameras will probably impact consumers through higher prices.

Legal implications of bodycams: Privacy at work

One of the bigger concerns about the use of these cameras is privacy, for employees and the public.

Loblaw says the expectation is that 90 to 95 per cent of its customers will never interact with the cameras, “and they will only be activated when our security team or store management engages with an individual with a risk of an escalated encounter.”

When it comes to privacy at work, employees “generally have a right to privacy in certain circumstances, but you don’t when it comes to simply what you’re doing throughout the day for your employer,” says Szarduski.

He elaborated that certain workplaces, such as hospitals or facilities handling sensitive personal health information, face greater privacy risks as the introduction of BWCs could lead to “information accidentally being accessed through these cameras.”

But even in a retail environment, there could risks, says Szarduski, using the example of an HR manager with the personal information of an employee sitting on their desk, accidently being recorded by a bodycam.

While it may seem “farfetched,” he says, that kind of situation could lead to breaches of privacy.

Human rights concerns with body cameras

From a human rights perspective, BWCs introduce additional layers of complexity. Szarduski pointed out that employers could face discrimination claims if an employee has “a true religious requirement that they don’t be filmed on camera.”

Similarly, BWCs could exacerbate mental health issues for some employees.

“If someone has a mental health concern that is triggered deeply by the concept of being constantly, potentially under surveillance... and the doctor supports that, well, guess what? You’re going to have to accommodate that person,” he says.

Szarduski underscores the need for clear policies on workplace surveillance, including “a consent and a notice requirement,” to mitigate conflicts with employees. However, even with these safeguards, implementing BWCs could lead to legal disputes.

“What happens when someone doesn’t get consent, what do you do?”

Breach of contract and constructive dismissal?

The introduction of bodycams could also lead to potential breaches of employment contracts and constructive dismissal claims, says Szarduski, such as cases where long-standing employees view the new tech as a violation of their established workplace norms.

In such cases, employees could argue that the implementation of BWCs constitutes a breach of contract and constructive dismissal, he says.

“Would it be a successful argument? There’s no precedent for that yet, probably, but there would be a 50/50 argument that it very well may be. Of course, it’s a nuanced circumstance… because someone could inherit the contractual right over time to have control over their workspace, including privacy of their work.”

Even in cases where employees accept BWCs, the impact could extend to just cause terminations and disputes over workplace misconduct, according to Szarduski.

“Is there camera footage out there disproving the employer stance on just cause or supporting their stance on just cause?” he says.

“It essentially has all of these practical and tangible consequences that will not be seen until there's a conflict, or they may cause a conflict.”

Schneider questioned what would happen if a worker forgot to turn the camera on during the heat of an altercation.

“The last thing on a lot of people's minds is, ‘Oh boy, I’ve got to make sure to switch the camera on and get the angle correct so I'm filming this accordingly,’” he says.

“Will that worker be terminated if they forget to switch their camera on?”

Managerial discretion: When to use body-worn cameras

Loblaw stated that its asset protection/security team and on-duty store manager “will be trained to use the cameras effectively.”

But Szarduski and Schneider both expressed concerns about the discretion granted to managers.

While allowing only managers to wear BWCs can mitigate some issues, says Szarduski, “when are they turning it off and on within their purview to do so?... I’ve seen managers abuse their power.”

Schneider echoed this concern, asking what might be considered an “incident”?

“They're giving the management discretion, which is fine, but when that manager uses their discretion and does not turn the camera on, or turns it off for whatever it may or may not be, what's the accountability mechanism that's going to be built in there?”

Police often will turn the cameras on when an event or incident happens, he says, plus the data capacity and battery capacity are such that the devices can’t run 24-7, “so we often get incomplete depictions [on video].

“Are workers going to have the same level of discretion? And if they do, this complicates the questions about accountability related to, say, theft.”

Data storage and bodycam footage

The storage and management of BWC footage also present significant challenges. Loblaw says the data will be stored in a “secure cloud-based system for up to 90 days” and only shared with the appropriate law enforcement “as necessary.”

Szarduski underscores the importance of secure data storage, suggesting “there should absolutely be some sort of private, backed-up server that’s insured as part of your insurance for cyber attacks.”

He warns that improper handling of video data could lead to severe legal consequences, especially if footage is destroyed accidentally or deliberately.

“If you’re found to be accidentally destroying evidence — which these types of 90-day destroying policies sometimes fall under — you can have extra costs awarded against you simply because you accidentally destroyed it, and litigation.”

‘Who’s going to get access to the footage?’

Schneider expanded on these concerns, highlighting the potential for data misuse or insufficient protection.

“Who's going to get access to the footage? I think that's a big one if we're talking about reprimanding employees.”

On the surface, using bodycams for workplace conflict sounds like a great idea, he says, citing a situation where somebody makes an accusation that their boss is being a jerk or harassing them.

“We pull the footage, there's evidence, they're fired, problem solved. Is it going to be like that, cut and dry? Based on what we know from policing, no,” says Schneider, adding employees might have trouble gaining access to the camera footage.

There are more questions than our answers at this point, he says.

“If they're going to roll out body-worn cameras like the police are, they should have a very clear policy upfront, and it should be very transparent. It should be online or whatever for everybody to see it [and] have an understanding of the expectations about how the footage is going to be managed.”