Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697723927409.pdf (Canada)
Advancing Rail Safety: Employee Privacy and the Public Interest Publication No.

2015-117-E 26 October 2015 Allison Padova Legal and Social Affairs Division Parliamentary Information and Research Service Papers in the Library of Parliament’s In Brief series are short briefings on current issues.

At times, they may serve as overviews, referring readers to more substantive sources published on the same topic.
They are prepared by the Parliamentary Information and Research Service, which carries out research for and provides information and analysis to parliamentarians and Senate and House of Commons committees and parliamentary associations in an objective, impartial manner.

© Library of Parliament, Ottawa, Canada, 2015 Advancing Rail Safety: Employee Privacy and the Public Interest (In Brief) Publication No.

2015-117-E Ce document est également publié en français.
CONTENTS INTRODUCTION ....................................................................................................... 1 TRANSPORTATION SAFETY BOARD OF CANADA RECOMMENDATIONS ............................................................................................. 1 RAILWAY COMPANIES’ PERSPECTIVES .............................................................. 2 RAILWAY UNION CONCERNS ................................................................................ 2 TRANSPORT CANADA INITIATIVES ...................................................................... 3 LEGISLATIVE CONSIDERATIONS .......................................................................... 3 6.1 The Canadian Transportation Accident Investigation and Safety Board Act ............................................................................................. 3 6.2 The Personal Information Protection and Electronic Documents Act ...................................................................................... 4 IN-CAB VOICE AND VIDEO RECORDERS IN THE UNITED STATES ......................................................................................... 4 LIBRARY OF PARLIAMENT i PUBLICATION NO.
2015-117-E ADVANCING RAIL SAFETY: EMPLOYEE PRIVACY AND THE PUBLIC INTEREST 1 INTRODUCTION Although railway mainline accident rates have declined dramatically in Canada over the past 20 years, the serious consequences of some accidents may justify a new approach to protecting railway employees, the public and the environment.

Numerous North American rail accident investigations have identified human factors such as driver distraction, speeding, and failure to follow signals as causal factors.
Currently, Transport Canada, the Transportation Safety Board of Canada (TSB), railway companies and employees’ unions are evaluating how locomotive voice and video recorders (LVVRs) could be used as a safety tool in the railway industry.1 2 TRANSPORTATION SAFETY BOARD OF CANADA RECOMMENDATIONS The TSB has the mandate to advance transportation safety through investigations of transportation incidents and accidents.
On the basis of its findings from rail investigations, the TSB has concluded that a better understanding of crew responses and interactions in the cab of a locomotive before an accident occurs could identify key safety issues and help reduce or eliminate human causal factors.
In order to gain more information about whether and how the actions of train crews contribute to rail incidents and accidents, the TSB: • • issued recommendations for on-board cab voice recordings in 20032 and for in-cab video cameras in 20133; and included on-board voice and video recorders on its Watchlist in 20124 and 2014.5 The TSB’s Watchlist identifies issues that pose “the greatest risk to the [safety of the] Canadian transportation system.” The TSB believes that in-cab recordings could have value for more than just accident investigations.
It has suggested that the railway companies could use the recordings “in a non-punitive manner in the context of proactive safety management” to identify and mitigate the risks posed by human factors in their operations.6 In 2015 the TSB indicated that it would work with Transport Canada and industry to permit the use of voice and video recordings for investigative as well as preventive purposes to advance safety.7 LIBRARY OF PARLIAMENT 1 PUBLICATION NO.
2015-117-E ADVANCING RAIL SAFETY: EMPLOYEE PRIVACY AND THE PUBLIC INTEREST 3 RAILWAY COMPANIES’ PERSPECTIVES Canada’s largest railway companies support the installation of LVVRs, but would do so voluntarily only if they could use the recordings to monitor employees’ compliance with operating and safety rules.
According to the railway companies’ calculations, the expected safety benefit from using in-cab recordings only for accident investigations would not justify the cost of installing and maintaining the equipment.

The railway companies propose to use in-cab recordings to identify unsafe trends in employee activities so that they can take corrective action before an accident occurs.
According to the Railway Association of Canada (RAC): 8 • incidents such as use of emergency brakes, speeding and passed signals would trigger a review of the crew interactions recorded before the incident; • access to recordings would be controlled within the company, and strict chain-of- custody rules would apply to sharing recorded information outside the company; and • the information would be erased within a short period except in the case of an incident or safety audit.
The RAC has prepared rules that would guide the industry’s use of locomotive inward-facing video and/or in-cab voice recordings in the event that such recordings are required by law.
The smaller regional railway companies (shortlines), including commuter railways, have indicated that they would have considerable difficulty funding the installation and maintenance of in-cab recording devices.9 4 RAILWAY UNION CONCERNS According to the final report of a Transport Canada working group on LVVRs in 2013, the unions representing locomotive crews (e.g., Teamsters Canada Rail Conference (TCRC), and the United Steelworkers) oppose the railway companies’ use of in-cab recordings to monitor employee behaviour.10 Railway employees, who might spend up to 70 hours per week in a locomotive cab, are particularly concerned about loss of privacy and the possibility that managers might use the on-board recordings to harass them.
In 2013, the TCRC, which represents the on-board train operating crews, indicated that it would support the implementation of LVVRs if access to any data is controlled by and restricted to the TSB and if the “necessary correct and required balance” is struck between its members’ rights and the safety benefit.11 LIBRARY OF PARLIAMENT 2 PUBLICATION NO.
2015-117-E ADVANCING RAIL SAFETY: EMPLOYEE PRIVACY AND THE PUBLIC INTEREST 5 TRANSPORT CANADA INITIATIVES In response to the TSB’s recommendations for on-board recorders, in 2012 the Minister of Transport sought advice from the Advisory Council on Rail Safety (ACRS), a stakeholder forum, on options and recommendations with respect to their use.
Transport Canada’s instructions to the ACRS stipulated that recommendations either to maintain the status quo or to use on-board recordings for disciplinary action against employees would be unacceptable.
The ACRS’s Working Group on Locomotive Voice and Video Recorders considered the positions of Transport Canada, railway companies and employee unions and recommended the voluntary installation of voice and video recording devices in locomotives by railway companies.12 In 2013, the former Minister of Transport encouraged all railways to voluntarily install recording devices as a tool to monitor their companies’ safety management systems13 in a non-punitive manner (i.e., for training and coaching only).14 In February 2015, Transport Canada announced its intention to explore mandatory requirements for on-board recording devices with stakeholders.
The first phase of a two-phase safety study to evaluate LVVRs, involving Transport Canada, the TSB, and other key stakeholders, was due to be completed in the fall of 2015.

The second phase, if it proceeds, would involve legislative, regulatory and/or rule changes to mandate the use of LVVRs.
6 LEGISLATIVE CONSIDERATIONS 6.1 THE CANADIAN TRANSPORTATION ACCIDENT INVESTIGATION AND SAFETY BOARD ACT Railway companies’ proactive use of on-board recordings to monitor employees’ adherence to safety rules may require legislative changes because the use of on- board voice and video recordings, except for the purposes of investigations by the TSB, appears to be protected in law.
Section 28 of the Canadian Transportation Accident Investigation and Safety Board Act (CTAISB Act) states that on-board recordings from the cabs of locomotives are privileged and can be accessed by the TSB only after an accident.15 Section 28(7) prohibits the use of on-board recordings for disciplinary, competency or legal proceedings against train crew members.
Although the routine review of on-board recordings by railway companies would seem to be against the law, stakeholders have put forth various interpretations of the legislative provisions.

As a result, the ACRS Working Group concluded in 2013 that “the lack of clarity with respect to the applicability and scope of the CTAISB Act is problematic and probably open to legal challenge.” 16 LIBRARY OF PARLIAMENT 3 PUBLICATION NO.
2015-117-E ADVANCING RAIL SAFETY: EMPLOYEE PRIVACY AND THE PUBLIC INTEREST 6.2 THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT Employers may need to collect personal information through video surveillance from employees to ensure that work is done efficiently and safely; meanwhile, employees expect, and have a right to, privacy in the workplace.
In Canada, the Personal Information Protection and Electronic Documents Act oversees the collection, use and disclosure of personal information about employees collected by private sector enterprises in provinces without similar privacy legislation.
In all provinces, PIPEDA applies to federally regulated organizations, such as Canada’s largest railway companies.17 The Office of the Privacy Commissioner of Canada (OPC) asserts that although “[e]mployers have legitimate requirements for personal information about their employees,” the need to intrude into private matters through surveillance (including voice and video recordings) needs to be weighed against “the cost to staff morale and trust.” recordings would involve the railway companies receiving employee consent for the monitoring program, using the recordings only for specified purposes, and retaining the information as briefly as possible.
According to the OPC, employees should also have access to the personal information contained in the recordings and the opportunity to challenge its “accuracy and completeness.” 18 The OPC suggests that achieving a compromise for audio or video 19 7 IN-CAB VOICE AND VIDEO RECORDERS IN THE UNITED STATES The National Transportation Safety Board (NTSB) in the United States has issued five safety recommendations calling for recorders inside the operating compartment of locomotives since 1997.20 Other than for investigations, the NTSB recommends the use of the in-cab voice and video recordings by railway companies for “systemwide performance monitoring programs” and “to verify that train crew actions are in accordance with rules and procedures that are essential to safety.” 21 Several U.S. freight and passenger railways have voluntarily installed inward-facing video recorders inside their locomotives and monitor the recordings; these railways include Los Angeles Metrolink (2009), Kansas City Southern Railway (2013), Union Pacific Railway (2013) and Amtrak (2015).
Other U.S. railways, including CSX Railway (2013), Canadian Pacific Railway (U.S. operations) (2013), Norfolk Southern Railway (2014) and Metro-North Railroad (2014) have signalled their intention to install or test inward-facing video image recorders to the NTSB.

U.S. railway unions (i.e., the United Transportation Union and the Brotherhood of Locomotive Engineers and Trainmen) generally oppose the installation of video recorders inside the cabs of locomotives.
As is the case with the railway unions in Canada, the U.S. unions’ principal concerns are that the recorders compromise basic privacy and might lead to harassment from management.

Some union representatives have also suggested that cameras could have a negative impact on train crew performance by causing stress.

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2015-117-E ADVANCING RAIL SAFETY: EMPLOYEE PRIVACY AND THE PUBLIC INTEREST recording initiatives have not thus far been successful, as courts have ruled that railway companies’ use of on-board recordings is neither a new contractual right to be negotiated nor an unreasonable violation of employees’ privacy.22 The Federal Railroad Administration (FRA), the railway regulator in the United States, initiated regulatory action on the NTSB’s safety recommendations in 2014.
The FRA tasked its Railway Safety Advisory Committee, a stakeholder forum, to study the proactive use of audio and video recordings by railroads to evaluate crew fatigue, distraction and interactions, to use as a training tool and to conduct operational tests.23 Although the committee was unable to reach consensus on its task, the FRA announced its intention to proceed with a Notice of Proposed Rulemaking process in 2016 with respect to the use of video recorders; audio recording would be allowed but not mandated.24 The construction standards for the recorder, chain-of-custody protocols for recordings, and other requirements have yet to be determined.
NOTES 1.

2.

3.

4.

5.

6.

7.

Government of Canada, “Archived – The Government of Canada announces Joint Safety Study on Locomotive Voice and Video Recorders to Improve Rail Safety,” News release, 30 April 2015.

Transportation Safety Board of Canada (TSB), “Rail Recommendation R03-02,” Rail.

Ibid.

TSB, “On-board video and voice recorders,” Watchlist.

TSB, “Watchlist 2014,” Watchlist.

TSB, “On-board video and voice recorders.” TSB, “Rail Recommendation R13-02.” 8.
Michael Bourque, “In Camera: Why Locomotive Cabs Need Video and Voice Recorders,” Policy Magazine, July/August 2015.

9.

Transport Canada, Final Report: Advisory Council on Rail Safety Working Group on Locomotive Voice and Video Recorders, 7 June 2013.

10.

Ibid.

11.

TSB, “Rail Recommendation R13-02.” 12.

Transport Canada, Final Report: Advisory Council on Rail Safety Working Group on Locomotive Voice and Video Recorders, 7 June 2013.

13.
13.

For more information see Allison Padova, Safety Management Systems: A Better Approach for Transportation?, Publication No.

2013-77-E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 15 August 2013.

14.

Government of Canada, “Archived – Transport Canada releases final report on locomotive voice and video recorders,” News Releases, 7 June 2013.

15.

Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3, s. 28.

16.
16.

Transport Canada (2013).

LIBRARY OF PARLIAMENT 5 PUBLICATION NO.

2015-117-E ADVANCING RAIL SAFETY: EMPLOYEE PRIVACY AND THE PUBLIC INTEREST 17.

Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.

18.

Office of the Privacy Commissioner of Canada, “Privacy in the Workplace,” Fact Sheets.

19.

Ibid.

20.
19.

Ibid.

20.

United States, National Transportation Safety Board, “Safety Recommendation R-97-009,” Data & Stats; “Safety Recommendation R-07-003,” “Safety Recommendation R-10-001” and “Safety Recommendation R-10-002,” Safety Recommendations; and “Safety Recommendation R-13-026,” Home.

21.

United States, National Transportation Safety Board, “Safety Recommendation R-10-001,” Safety Recommendations.

22.

Kansas City Southern Railway Co. v. Brotherhood of Locomotive Engineers & Trainmen, et al.
(2013), Civil Action No.

13-838, United States District Court (Louisiana); Brotherhood of Locomotive Engineers and Trainmen, and Glenn William Steel v. Southern California Regional Rail Authority (2011), Case No.

BC424287, Los Angeles Superior Court (California).

23.

United States, Department of Transportation, Railroad Safety Advisory Committee Task Statement: Inward- and Outward-Facing Recording Devices Mounted in Controlling Locomotive Cabs, Task No.

14-01, 6 March 2014.

24.


National Transportation Safety Board, “Safety Recommendation R-10-002,” Safety Recommendations.

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