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Employment Law Update: California Supreme Court Issues "Nuanced" Decision on Workplace Privacy

By Teresa R. Tracy

On August 3, 2009, the California Supreme Court issued what it described as a "nuanced" decision on the right of an employer to conduct surveillance in the workplace. The Court's approach disappointed both employers, who had hoped to get a bright-line defense to workplace surveillance, and plaintiffs, who had hoped for a bright-line affirmation of privacy claims. It set out a highly fact-based balancing test that leaves employers vulnerable to claims.

How the Case Affects Employees

Employers can take a number of lessons from the Court's decision.

  1. Workplace surveillance is not prohibited, but it will be carefully reviewed to ensure that it does not unnecessarily intrude into employees' privacy rights.

  2. Employees who have semi-private work locations continue to have legitimate privacy rights.

  3. Privacy rights are particularly strong in areas where employees are reasonably anticipated to engage in activities that an objective and reasonable person would find to be private and personal.

  4. If an employer wants to reserve the right to conduct workplace surveillance without specifically obtaining individualized consent, it needs to publish a policy that clearly advises applicants and employees that the premises are subject to camera monitoring and surveillance without further notice.

  5. Monitoring and surveillance should be narrowly tailored in place, time and scope and prompted by legitimate business concerns.


The Background Facts

The case, Hernandez v. Hillsides, Inc., involved an employer that operated a private nonprofit residential facility for neglected and abused children, including the victims of sexual abuse. It employed the two plaintiffs, who shared an enclosed office with a door that could be shut and locked and window blinds that could be drawn. They performed clerical work during daytime business hours. The facility's director learned that late at night, after plaintiffs had left, an unknown person had repeatedly used a computer in the plaintiffs' office to access the internet and view pornographic websites. This conflicted with the employer's policy as well as with its aim of providing a safe haven for the children.

The director, concerned that the culprit might be a staff member who worked with the children, installed a hidden camera in the plaintiffs' office. The camera could be made operable from a remote location, at any time of day or night, to permit either live viewing or videotaping of activities around the targeted workstation. It was undisputed that the camera was not operated for either of these purposes during business hours; thus plaintiffs' activities I the office were not viewed or recorded. The director did not expect or intend to catch plaintiffs on tape. The plaintiffs were not advised that the camera was being installed.

The employer did have an "email, voicemail and computer systems policy" that warned employees that they had "no reasonable expectation of privacy in any... use of 'Company computers, network and system," and that the employer could "monitor and record employee activity on its computers, network... and e-mail systems," including "e-mail messages[,]... files stored or transmitted[,] and... web sites accessed."

When the plaintiffs discovered the surveillance camera in their office, they sued for a violation of their right to privacy under both the common law and the constitution of California, even though they had absolutely no evidence that they had been viewed or recorded by using the camera.

The Court's Analysis

Ultimately, the Supreme Court agreed that based on the undisputed facts and as a matter of law, the defendants were entitled to summary judgment. In reaching this decision, it considered (1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests.

1. Intrusion Upon Reasonable Privacy Expectations

The Court started its analysis from the premise that, while privacy expectations may be significantly diminished in the workplace, they are not lacking altogether. It noted that prior cases had highlighted various factors that, either singly or in combination, affect societal expectations of privacy including the identity of the intruder, and the nature of the intrusion (meaning both the extent to which the subject interaction could be "seen and overheard" and the "means of intrusion").

These factors serve to distinguish a situation involving a secret recording in a nonpublic part of the workplace by a person who misrepresented themselves as a colleague for publication on a national television program from a situation in which the workplace is regularly open to entry or observation by the public or press or the subject interaction occurs between either the proprietor or employee of the business and a person who walks in from the street. Thus, at one end of the "ability to be seen and overheard" spectrum are settings in which work or business is conducted in an open and accessible space, within the sight and hearing not only of coworkers and supervisors, but also of customers, visitors, and the general public. At the other end of the spectrum are areas in the workplace subject to restricted access and limited view, and reserved exclusively for performing bodily functions or other inherently personal acts.

The court focused on three factors that let it to believe that the plaintiffs in this case had no reasonable expectation that their employer would install a camera in their semi-private office:

  1. While an employee's privacy interest in a shared office at work is not absolute, the fact that the plaintiffs' office door could be shut and locked and the window blinds drawn generated a legitimate expectation that not all activities performed behind closed doors would be clerical and work related.

  2. The use of a hidden camera or recorder is more intrusive than an employee who opens the door and enters the office during work hours. Furthermore, in this case, there was nothing to prevent the employer from activating the camera during work hours or when the plaintiffs were otherwise in their office, and there were a number of other employees who had access around the clock to the area where the activation mechanism was placed.

  3. The employees had no advance notice of monitoring, and the employer's e-mail, voicemail and computer policy did not serve to place employees on notice of other kinds of monitoring. employee has a reasonable expectation under "widely held social norms" that the employer will not install video equipment capable of monitoring and recording their activities - personal and work related - behind closed doors without their knowledge or consent.

2. Offensiveness/Seriousness of the Privacy Intrusion

Even if there is an intrusion on a reasonable privacy expectation, to be actionable the intrusion must also be "highly offensive" to a reasonable person and "sufficiently serious" and unwarranted as to constitute an "egregious breach of the social norms."

A. Degree and Setting of Intrusion

The factors that fall within the "degree and setting of intrusion" category encompass the place, time and scope of the surveillance efforts.

In this case, the Court found the following to be important:

  1. The employer took a measured approach in choosing the location to videotape the person who was misusing the computer system, both as to the office location and the focus of the camera (i.e., the area in which the unauthorized computer activity had occurred), and access to the storage room and knowledge of the surveillance of the surveillance equipment inside were limited.

  2. The surveillance equipment was operational during a fairly limited window of time (i.e., 21 days, no longer than was necessary to determine that it was unlikely that any prohibited conduct would be observed).

  3. The actual surveillance activities were quite limited in scope (actual monitoring and recording inside plaintiffs' office occurred an average of one once a week for three weeks, after plaintiffs' shift ended and they normally left the premises).

  4. The employer actually did not capture either of the plaintiffs on camera.

B. Employer Motives, Justifications, and Related Issues

The Court found that that the case did not involve surveillance measures that were conducted for socially repugnant or unprotected reasons. Rather, the employer installed the surveillance camera and activated it in a reasonable manner in order to confirm a strong suspicion based on objective evidence that someone was using the computer at night in an unauthorized and inappropriate manner. This was in the context of the apparent risks under existing law of doing nothing, and a limited range of available solutions. The Court rejected the plaintiffs' arguments that the employer had to prove that there was no less intrusive means of accomplishing the legitimate objectives, noting that the suggested alternatives would not necessarily have met the employer's legitimate objective.

Also key to the Court's decision was the fact that there was no covert surveillance of the plaintiffs behind closed doors. They were not at risk of being monitored or recorded during regular work hours, and were never actually caught on camera or videotape.

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