Whether justified or not, the recent spate of high-profile police shooting cases throughout the United States has brought national attention to the issue of whether law enforcement officers should be using body cameras while on duty. Currently, a debate rages among the various stakeholders concerning the pros and cons of body cameras.
Those in favor of body cameras argue that the video footage can provide a great deal of clarity when the facts are in dispute. As the adage goes, “a picture is worth a thousand words” and can be of considerable assistance in resolving the “he said, she said” disputes that often arise when claims of police brutality, or overzealous police behavior, are raised. Similarly, a strong argument can be made that requiring law enforcement officers to wear body cameras will improve behavior by both the police and the citizenry at large, as all parties are likely to realize that what they are saying and doing is being recorded. Finally, unlike a lot of other bulky equipment that police officers routinely wear, body cameras are typically light-weight, small, and unobtrusive.
On the other side of the debate, many criticize the use of body cameras. One negative is the cost. However, this objection is likely to be short-lived as the technology develops and prices become more reasonable. A stronger argument against the use of body cameras, especially by those in the law enforcement community, is that these devices – which are designed to record the commission of criminal activity – will be used to nitpick, micromanage, and even discipline, officers for their daily, non-criminal behavior. Perhaps the most significant objection is the argument that the wearing of body cameras exposes both the police officers who wear them, and the law enforcement agencies for which they work, to complaints by citizens and others who may consider being videotaped – often in the privacy of their own homes, and under highly emotional circumstances — as an unwarranted invasion of their privacy.
Irrespective of the pros and cons of using body cameras, the reality is that more and more police departments throughout the nation are requiring their law enforcement officers to wear them. That fact raises another important issue for public sector employers: can law enforcement agencies with unionized workforces require their police officers to don body cameras without first engaging in collective bargaining negotiations with the police unions representing those officers? In many jurisdictions, this is a question of first impression. The Public Employees Relations Commission in my home state of Florida has not decided the issue.
Although the issue is generally unsettled, we believe that most public sector management clients will consider it better to be safe than sorry and will choose to bargain over mandating law enforcement use of body cameras. Using Florida as an example, public sector employers with unionized work forces are required by law to collectively bargain with union representatives of police unions over “mandatory subjects of bargaining.” Mandatory subjects of bargaining consist of wages, hours, terms and conditions of the police officers’ employment. Common examples of mandatory subjects of bargaining include work schedules, pay scales, health insurance, seniority, sick and vacation leave, and dress codes. Police unions have argued that the use of body cameras is a mandatory subject of bargaining because use of the cameras is being made a term and condition of employment.
Public sector law enforcement agencies have countered that employers have a management right to require their employees to use body cameras. Typically, employers are permitted to unilaterally exercise certain management rights pertaining to the control and direction of their business organizations. Although such rights are customarily set forth in management rights clauses contained in collective bargaining agreements, in Florida, as well as some other jurisdictions, a public sector employer’s management rights are established by statute. Historically, an employer’s selection of the kind of equipment that it uses in the performance of its business has been viewed as a management right. Consequently, it is not surprising that law enforcement agencies, both in Florida and other parts of the nation, have taken the position that they can unilaterally require their police officers to wear body cameras without bargaining over the issue with the police unions.
Notwithstanding this “management rights” argument, it is risky for a public sector employer to unilaterally require the use of body cameras on an organized workforce without first bargaining with the police union. Doing so could result in an unfair labor practice charge, as the police union is likely to argue that the use of body cameras is a term and condition of employment.
And the union may prevail. Thus far, unions have successfully challenged at least two law enforcement agencies that had unilaterally required that their police officers wear body cameras. One case involved law enforcement officers in Montgomery County, Maryland, and another involved police officers in Oklahoma City. (Scroll down to footnotes 13 and 14.)
As mentioned earlier, Florida has yet to address this question. However, there is good reason to believe that Florida’s Public Employee Relations Commission would reach a similar conclusion. Florida’s Public Employees Relations Act is modeled after the federal National Labor Relations Act, which applies to private sector employers. Likewise, Florida’s PERC is modeled after the federal National Labor Relations Board, and it typically follows decisions issued by the NLRB, absent the existence of some clear distinction between the NLRA and the PERA. Notably, the NLRB on several occasions has ruled that employers in the private sector commit unfair labor practices when they fail to provide notice of, and bargain over, the use of hidden surveillance cameras in the workplace before their installation.
Certainly, a distinction can be drawn between hidden surveillance cameras installed in a workplace that the employees are not aware of, and body cameras, which the officers know that they are wearing. Even so, it is difficult to argue that body cameras do not alter the terms and conditions of a police officer’s employment. Both the police officers who wear the cameras, and the people with whom those officers may come into contact, may behave very differently based upon the presence of the body cameras.
We suspect that the Florida PERC, once confronted with the question, is likely to determine that the use of body cameras is a mandatory subject of bargaining. However, even if it doesn’t, public sector employers will still be required to collectively bargain over the impact of their decision to do so.
This article originally appeared in the Employment & Labor Insider, published by Contangy, Brooks, Smith & Prophete LLP.