The California Supreme Court has sent a mixed message to employers who wish to conduct secret video surveillance in the workplace using hidden cameras.  The Supreme Court approved the use of hidden cameras in certain circumstances.  Here is what happened.

In Hernandez v. Hillsides, Inc., the company secretly installed hidden video recording equipment in a semi-private office shared by two employees.  They did this because the Company suspected that certain employees (not the office occupants) were using the computer after hours to access pornography.  The camera was operated only during non-business hours when the office occupants were away from the premises.

The plaintiffs in this case, Abigail Hernandez and Maria-Jose Lopez, were clerical employees of Hillsides Children Center, a private non-profit residential facility for neglected and abused children. The facility's director, John Hitchcock, learned that an unknown person had repeatedly used a computer in the womens' private office after hours to view pornographic Internet sites.

This unauthorized Internet use violated company policy and conflicted with the goal of providing a safe haven for neglected and abused children.  Hitchcock was particularly concerned that the culprit might be a staff member who worked with the children.  Though Hitchcock did not suspect that either of the women engaged in this activity, he declined to advise them that he intended to install the hidden camera.

The camera could be operated from a remote location, at any time, to permit live viewing or videotaping of activities in the office.  However, the camera was never operated during business hours while the women were present and the women were never actually viewed or recorded by the camera.

The women discovered the video equipment a few weeks after it was installed.  They immediately complained and the equipment was promptly removed.  Their boss, Mr. Hitchcock, explained his reasons for installing the equipment, and assured the women that they had not been videotaped or even targeted by the cameras.  The women viewed the videotapes. The only person who appeared on the tape was their boss while he was setting up the camera.

Nevertheless, the two women sued the company and Hitchcock for invasion of privacy and related claims.

 

The trial court threw out the case, finding no impermissible intrusion whatsoever on their reasonable expectation of privacy.  The Court of Appeal disagreed, reasoning that the women had a reasonable expectation against this type of intrusion in the workplace.  The appeals court stated that the Company's conduct was highly offensive.

The Supreme Court ultimately dismissed the lawsuit.  In doing so, the High Court discussed the two elements required for an invasion of privacy claim.  Employers contemplating using hidden cameras should heed the court's comments.

 

The first requirement is that the offender must intentionally intrude upon a matter as to which the plaintiff has a "reasonable expectation of privacy."  The second requirement is that the manner of this privacy intrusion must be "highly offensive to a reasonable person."

 

The Supreme Court concluded that in a private office setting, the women had sufficient evidence to prove that they had an expectation of privacy. However, the case had no merit because what the employer did in this case was not highly offensive.

On the expectation of privacy issue, the Supreme Court noted that the womens' shared office had a door that could be locked and window blinds that could be drawn.  In such a "protective setting," there are "legitimate expectations" that employees may engage in personal activities unrelated to work in the office and that they "would not reasonably expect to be the subject of televised spying and secret filming by their employer."

 

In making this finding, the court emphasized that the two women were given no notice of the installation of the video equipment, and there was no company policy that might have put them on notice that their employer might do so.  Had the company done one or both of these things, their privacy expectation may have been diminished altogether.

On the second requirement, the Court ruled that the employer's conduct was not "highly offensive."  This is because the employer went to great lengths to aim the camera only on the employee's workstation, since it was the only one where improper computer use had been detected.  They also limited access to the surveillance equipment and only operated the camera during non-working hours when the office occupants were not likely to be present.

The court also made a special note that the employer's motive for installing the hidden camera was not "socially repugnant or unprotected."  Rather, the employer's only goal was to "confirm a strong suspicion - triggered by publicized Internet tracking measures - that an unknown staff person was engaged in unauthorized and inappropriate computer use at night."  This computer use not only violated company policy, but could have exposed the company "to legal liability from various quarters."

The court also cautioned that it did not mean to "encourage" employers to use video surveillance in employees' secluded offices, "particularly in the absence of adequate notice to persons within camera range that their actions may be viewed and taped."  It only concluded that this employer's "drastically limited" surveillance was neither highly offensive nor "an egregious violation of prevailing social norms."

In light of the Court's decision, California employers must proceed with caution when deciding whether to conduct secret video surveillance in the workplace, even during non-working hours.  The same holds true with respect to audio recording of employees' conversations, monitoring of computer use, and inspections of private areas such as employee desks, lockers, purses and automobiles on company property.

To destroy the privacy expectation, the employer may advise employees in writing that the employer may use hidden cameras as part of its security protocol or may initiate searches of employee desks, lockers, autos, computers and any employer provided electronic communication system (e.g., e-mail, text messages). The notice may be included in an employee handbook or in a separate policy document, preferably with an acknowledgement of receipt signed by the employee.

 

Even with notice, however, it may still be unlawful to conduct video surveillance in especially private areas, such as restrooms, locker rooms or other places where employees are likely to be in states of undress.  In fact, State law specifically outlaws such conduct.

Your contact at the Firm is ready to assist you if you have any questions about this topic, or wish to arrange for a review of workplace privacy and surveillance policies.