California Employers May Conduct Surveillance of Employees in Certain Circumstances

The California Supreme Court recently held that an employer could place hidden cameras in an employees’ office in an attempt to uncover unethical behavior in Abigail Hernandez, et al. v. Hillsides, Inc., et al., 2009 WL 2356904(Cal.)  The Supreme Court considered employees’ privacy rights through the use of surveillance cameras and found it appropriate in certain circumstances.

The Defendant Hillsides, Inc. is a private nonprofit residential facility for neglected and abused children.  Many of the children are victims of sexual abuse, including child prostitution.  Hillsides employed staff twenty-four (24) hours a day to educate, counsel, supervise, and provide security for the residential facility.  The Plaintiffs, Abigail Hernandez and Maria-Jose Lopez, shared an enclosed office and were primarily responsible for clerical work during the daytime business hours. 

The Director of the facility discovered that someone was utilizing computers in the facility, during late evening hours, to access lewd and pornographic Web sites.  The inappropriate internet activity was a serious violation of Company policy and infringed upon the overarching purpose of the organization.  Having an employee accessing inappropriate Web content defeated the ultimate purpose of providing a safe haven for the children.  In an attempt to discover the perpetrator, Hillsides’ computer specialist placed hidden surveillance cameras in both the computer lounge and in the Plaintiffs’ office. 

The trial court originally dismissed the case based on the premise that the surveillance was a necessary means to a justifiable end.  The Court of Appeal, however, reversed the trial court’s determination, and found that the Company intruded upon the Plaintiffs’ “protected zone of privacy” and their use of undisclosed surveillance cameras was unjustified and offensive, therefore constituting a privacy violation.

The Supreme Court first evaluated whether the placement of the surveillance cameras was a privacy violation against the Company employees.  The Court’s analysis consisted of two elements. 

1. Did the Defendant intentionally intrude into a place which the Plaintiffs had a reasonable expectation of privacy? 
2. Whether the intrusion occurred in a manner highly offensive to a reasonable person?

To determine the Company’s intent, the Court considered whether the Defendant “penetrated some zone of physical or sensory privacy or obtained unwanted access to data by electronic or other covert means in violation of the law or social norms.”  The Court determined the surveillance cameras were in fact a violation of the employees’ expectation of privacy.  The Court analogized the employees’ expectation of privacy to that of an employee locker room in the basement of a police station, or models and dancers secretly being viewed and videotaped while changing during a fashion show behind the curtains as they change outfits during a performance.

Despite the Court’s determination that the employees’ expectation of privacy was violated, they determined within the second phase of their analysis that certain privacy rights are secondary to overarching principles embedded in Company policies.  The Court determined that the Plaintiffs must show more than an intrusion upon reasonable privacy expectations.  The Court further elaborated by saying “the invasion of privacy must be sufficiently serious and unwarranted as to constitute an egregious breach of the social norms.”   

The crux of the Court’s opinion was the Defendants’ motives and justification for their actions.  The surveillance was implemented to identify unauthorized and inappropriate computer usage, which posed a direct threat to the safety of the children and the organization’s reputation. 

Employers are entitled to monitor both computer and network usage of employees based on legitimate business reasons, and to use video surveillance if applicable.  Acts that reveal inappropriate behavior captured through regular business surveillance, including employee theft, lewd sexual behavior, and employee outburst, are all unprotected and subject to employer scrutiny.
 
If an employer chooses to monitor their employees, its reason must conform to the employer’s purpose and ethical obligations.  Employers should consult with a legal professional before implementing surveillance outside the normal scope of business security.  This opinion does not give employers free reign to tape its employees, and surveillance should be done on a limited case-by-case basis.  A legal professional can help you assess when surveillance is appropriate under California law.