Although it involves the claim of a union employee under the National Labor Relations Act (NLRA), a recent labor board decision reminds us that, under some circumstances, an employee may request that their employer provide them with workplace surveillance footage that is relevant to a disciplinary decision.
Casino’s Surveillance System Captures Video of Staff Meeting
Magic City Casino is located in Miami, Florida, a state that requires all casinos and gaming establishments to have surveillance systems operating on their premises. On September 19, 2023, the casino’s housekeeping department manager, Julio Paez, held a meeting for the casino’s housekeeping staff. According to Paez, during the meeting a housekeeper “in a wrong way [gesticulated] a lot and loudly, she approached the laundry cart and moved it in a bad way. She grabbed a container and threw it, she then replied to [ a co-worker] inappropriately.” As a result, Paez issued a verbal warning to the offending housekeeper. The housekeeper claimed that she was merely demonstrating how another employee had behaved and denied saying anything—inappropriate or otherwise—to the co-worker at the meeting. The meeting had been recorded by a casino surveillance camera, but the video did not include audio recording. Paez issued the discipline based on what he observed the housekeeper doing at the meeting. He never watched any video footage of the meeting.
When the housekeeper complained about her discipline, the casino’s general manager and HR director watched the recording.
The Grievance and Request for the Video
Meanwhile, the housekeeper and her union filed a grievance contesting the discipline over her actions at the departmental meeting. As part of the grievance process, the housekeeper and her union asked the casino to provide the surveillance footage of the meeting. The casino refused to give up the recording and justified its refusal on the following grounds:
- Paez, the departmental manager, had not viewed the video or based his discipline decision on the recording.
- Although she later watched the video, the HR director did not rely on the recording when considering the complaint over the discipline—instead, she relied on Paez’s firsthand report.
- The recording did not include audio, so it did not capture what the housekeeper had said during the meeting.
Later, the casino said it would not consider giving the recording to the housekeeper and union unless they agreed to sign an extremely strict confidentiality agreement.
An Unfair Labor Practice Charge and the Labor Board’s Ruling
The union filed an unfair labor practice charge against Magic City Casino under the NLRA, challenging the employer’s refusal during the grievance process to produce the video of the September 19 meeting. The National Labor Relations Board (NLRB) found that, even if the recording was not determinative in deciding the merits of the challenged discipline, the employee and her union were entitled to the video. Although the housekeeping manager may not have reviewed the video when making the original discipline decision, the casino’s general manager and HR director both watched it as part of their investigation of the housekeeper’s complaint and the grievance. More importantly, viewing the video would be the best way to see what actually occurred during the September 19 meeting.
The NLRB also addressed the employer’s claim that the recording should not be produced based upon confidentiality. An employer refusing to produce information on the basis of confidentiality in a contested employment matter must prove it has a “legitimate and substantial confidentiality interest” in the information it refuses to produce and that its confidentiality interest outweighs the employee’s need for the information. Here, the casino first argued it did not have to provide the video because it was irrelevant. It was only late in the process that the employer first raised confidentiality concerns. Moreover, the casino’s assertion of confidentiality was very general and vague, and the employer never explained why or how the video disclosed confidential business information that could not be disclosed during the grievance process.
Magic City Casino was ordered to produce the video recording. Gretna Racing LLC d/b/a Magic City Casino and Unite Here, Local 355, 374 NLRB No. 106 (NLRB 5/7/26)
Heads Up
Sure, this case involved a unionized workplace and was decided under the NLRA, but its lesson has a broader application: workplace video recordings may sometimes play a role in decisions made by an employer. If your workplace surveillance system records events that later figure into a disputed employment decision, be prepared to produce that recording if the employment decision is later challenged. More often than not, recordings are valuable in supporting the employer’s actions.
Charlie Plumb is an attorney in the Tulsa, OK, office of McAfee & Taft and can be contacted at charlie.plumb@mcafeetaft.com.