California Supreme Court Weighs in on Workplace Surveillance

Fourth Quarter 2009Newsletters California UPDATE Employment Law

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In a ruling vindicating an employer, the California Supreme Court recently provided some helpful guidance on the permissibility of employee surveillance in Hernandez v. Hillsides, Inc.

Defendant Hillsides Children Center, Inc. operated a residential facility for mistreated and neglected children, some of whom had been sexually abused. It was discovered that someone was using company computers to access pornographic web sites after working hours. This understandably caused great concern for Hillsides, especially considering the nature of the facility and its goal of providing a safe environment for abused children.

Hillsides was able to trace the web traffic to two computer stations: one in the computer laboratory and one in an office shared by the two plaintiffs. Hillsides first attempted to monitor the laboratory computer using hidden video surveillance equipment, but when that proved untenable, the surveillance equipment was moved into the plaintiffs' joint office. Neither of the plaintiffs were suspected of the computer misuse, but in order to prevent word of the surveillance from reaching the perpetrator, the plaintiffs were not informed. Hillsides prevented unnecessary surveillance of the plaintiffs. The video feed was only plugged into a monitor or recording device during non-business hours and only on three occasions over a three-week period. The equipment that received the video feed was kept in a locked location and only a few people were aware the surveillance was occurring. Eventually, the plaintiffs discovered the hidden video camera and commenced an action for invasion of privacy.

The Supreme Court ruled in favor of the defendants. The court held that although the plaintiffs had a reasonable expectation of privacy in their workplace, the intrusion was not highly offensive. The court determined that while privacy expectations may be lower in the workplace, they are not nonexistent. The plaintiffs' office had both a door that closed and blinds that could be drawn down around the windows. In such an office, there is a higher expectation of privacy than in a cubical or other open working environment. However, the court held that the defendant's conduct was not highly offensive or unjustified because multiple precautions were taken to prevent surveillance of the plaintiffs. The plaintiffs were never observed or recorded, and the surveillance was limited in time and scope.

This case provides good instruction for employers considering monitoring employees. First, employers should be aware that different working conditions or facilities can affect an employee's expectation of privacy. Second, workplace surveillance may be acceptable if the employer has a legitimate purpose for the surveillance and the monitoring is limited. While the court in this case did not hold that employers must pursue the least intrusive method of surveillance, it is often the best practice. A written policy informing employees that they may be subject to surveillance is also recommended.