While employers have the right to monitor the workplace, care must be taken in light of employee's privacy rights.
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Privacy Law Update
Cal Supreme Court Approves
Workplace Video Monitoring
Invasion Of Worker Privacy
Justified Under The Circumstances
By Christopher W. Olmsted
Employers with good intentions of keeping the workplace safe and secure have the means at their disposal to keep tabs on employees. Gadgets once relegated to 007 films are available to monitor a worker's every move. However, as one employer recently learned in the case Hernandez v. Hillsides, Inc., such efforts may collide with an employee's right to privacy.
Hillsides, Inc. operates a residential facility for abused and neglected children. In the summer of 2002, the facility's computer technician informed the director, Thomas Hitchcock, that someone was accessing pornographic websites at night from some of the facility's computers, including the one in an office occupied by two clerical employees, Abigail Hernandez and Maria-Jose Lopez.
At a meeting with various department heads, the director decided to install video surveillance cameras with motion detectors in areas where the illicit computer access had taken place. In Hernandez and Lopez' office, the camera and motion detector were placed on a shelf and set up to broadcast images to a TV monitor and video recorder located in a storage room across the hall.
The two clerks were not advised of this decision because they were considered to be part of a group of employees that “gossiped” and might inadvertently tip off the unknown person(s) the facility was trying to catch.
The surveillance camera and motion detector were “active” three times. The first time, Hitchcock had placed the camera and motion detector in the Hernandez/Lopez office after they had left for the day and removed it before they arrived the next morning.
Thereafter, Hitchcock had left the camera and motion detector functioning in the clerk's office but only twice had “connected” the wireless receptor to the TV monitor and recorder in the storage room—after hours. The camera was in place for about three weeks, and the director planned to remove it because no pornographic materials had been accessed on the office computers.
A Disturbing Discovery
A few days before the planned removal, the two clerks discovered the camera. They became very disturbed. The director explained why the camera was there and that it only been used after hours.
The clerks did not report to work for two days, and upon return, asked to see the video tape. The director agreed to their request. The tape contained footage of an empty room.
Not placated, the two clerks filed suit against the facility and the director for invasion of privacy arising from their discovery of the surveillance equipment in their office.
Disabled Camera Violated Privacy?
The clerks contended that the mere presence of the camera invaded their right to privacy. The clerks contended that they had a reasonable expectation of privacy in that room. They shared an office with a locking door and a window with shades that could be drawn for privacy. On several occasions Hernandez used her office to change clothes before leaving for the gym. Lopez occasionally used the office to show Hernandez how her figure was recovering after recently giving birth by raising her shirt to expose her breasts and stomach.
In its defense, the facility argued that (a) the camera had never been activated while the plaintiffs were present; (b) even if it had been, the plaintiffs had no expectation of privacy in that work space; and (c) the facility had business justifications for the surveillance.
Agreeing that the absence of any actual surveillance of plaintiffs precluded an invasion or privacy claim, the trial court granted the facility's motion for summary judgment.
The employees appealed, and the court of appeal ruled in favor the employees, reinstating the case. However, the employer appealed to the California Supreme Court. California’s highest court sided with the employer, ruling that the company had acted appropriately under the circumstances.
Invasion of Privacy
The court began with the premise that “While privacy expectations may be significantly diminished in the workplace, they are not lacking altogether.” In other words, employers must heed employee’s privacy rights. Further, noted the court, a person’s expectation of privacy depends on the circumstances. Privacy means something different in an enclosed office than in an open populated space.
A privacy violation claim has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person. Both common law and the California constitution includes similar protections against invasion of privacy.
A Reasonable Expectation of Privacy
The court evaluated the evidence and determined that the employees had a reasonable expectation of privacy. They were in a private office separate from other work areas. Although others could access the office, they had sufficient seclusion to give rise to the expectation. Employees who retreat into a shared or solo office, and who perform work and personal activities in relative seclusion there, would not reasonably expect to be the subject of televised spying and secret filming by their employer.
By contrast, employees who worked in an open area visible to many other workers or the public may not have such an expectation of privacy (though the court was careful to note that it depends on the circumstances.)
Video Is More Intrusive
The fact that the monitoring was by video camera made matters worse. Courts have acknowledged the intrusive effect for tort purposes of hidden cameras and video recorders in settings that otherwise seem private. It has been said that the “unblinking lens” can be more penetrating than the naked eye with respect to “duration, proximity, focus, and vantage point.” Such monitoring and recording denies the actor a key feature of privacy — the right to control the dissemination of his image and actions.
The Failure To Warn
The Court also noted that the employer had given its employees no warning that they would be subjected to the risk of such video surveillance, or to have agreed to it in advance. Had the company done so, it could have inhibited an expectation of privacy.
Some Invasions of Privacy Are Justified
Just because an employee has an expectation of privacy does not mean that every employer intrusion is unlawful. A defense exists if the intrusion on privacy is justified. If the employer can show that the invasion was necessary for a legitimate purpose, no violation occurs. The court looked at a couple factors:
1. Degree and Setting of Intrusion. The employer took steps to minimize intrusion into the employee’s privacy. In context, defendants took a measured approach in choosing the location to videotape the person who was misusing the computer system. First they attempted to catch the person in the computer lab, but failed. Then they monitored the plaintiffs’ office, but only after hours and only by monitoring the computer space, not the rest of the office. Knowledge of the surveillance was limited to a few responsible people, and only a few had access to the equipment. The equipment was in place for a very short period of time. In short, although the company invaded the employee’s privacy, it did so in a minimally intrusive manner.
2. Defendants’ motives, justifications, and related issues. The employer had good grounds to conduct the surveillance. “This case does not involve surveillance measures conducted for socially repugnant or unprotected reasons” observed the court. Hillsides installed video surveillance equipment in plaintiffs’ office in order to stop unauthorized and inappropriate computer use at night. Given the apparent risks under existing law of doing nothing to avert the problem, the monitoring was not highly offensive. At the very least, accessing pornography on company computers was inconsistent with Hillsides’ goal to provide a wholesome environment for the abused children in its care, and to avoid any exposure that might aggravate their vulnerable state.
Thus, the California Supreme Court concluded that although the employer invaded the employee’s privacy, it was justified in doing so under the circumstances.
While the employer ultimately prevailed, this case serves as a reminder to employers that employees do not check their privacy rights at the company door. Although disclosure and consent will often mitigate claims, privacy rights remain a fuzzy area of constitutional law, and employers should intrude with the utmost care.
Privacy: Take Away Tips
Employees have a reasonable expectation of privacy in certain areas of the workplace, such as restrooms or secured offices.
When justified by business needs, some private areas can be monitored.
It is a best practice to notify employees that they are subject to surveillance. However, sometimes such notice is counterproductive (e.g. it may be difficult to catch a criminal).
Monitoring policies and practices must be carefully prepared to ensure they provide adequate notice for the types of monitoring your company may do.
Monitoring should be carefully planned so that it is done in a minimally intrusive manner under the circumstances.
Related article:Employer Monitoring of Employee Text Messages Invades Privacy
Download entire September 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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