The California Supreme Court recently held in Hernandez v. Hillsides, Inc. that an employer that conducted video-surveillance in an office shared by two employees did not violate their privacy rights. However, the Court reiterated that the invasion of privacy inquiry is fact-sensitive and places significant restrictions on a California employer's ability to control the workplace.
Plaintiffs Hernandez and Lopez performed clerical work at a private residential facility for neglected and abused children. They shared an office at the facility, and although other employees were permitted to enter the office, Hernandez and Lopez occasionally closed and locked the door for privacy reasons, including changing or adjusting their clothing.
At some point during the employment of Hernandez and Lopez, the facility Director observed Internet records indicating that someone had used Lopez's computer, as well as a classroom computer, to view pornographic material. The records showed that the material had been accessed late at night, after the shift ended for Hernandez and Lopez, so the Director suspected that another staff member was the culprit.
Recognizing the facility's legal and ethical interest in protecting the wellbeing of its patients, many of whom were victims of sexual abuse, the Director decided to set up a surveillance system to determine who viewed the pornographic sites. The Director initially conducted surveillance on the classroom but could not identify the culprit because so many people used the room for legitimate purposes during and after business hours. Therefore, the Director installed a video surveillance system in the office used by Hernandez and Lopez.
The Director set up the surveillance system to record only when a "receptive device" in a viewing room was plugged in, and only when the system detected movement in the office. Furthermore, the surveillance system only operated after business hours, when Hernandez and Lopez were off work. Ultimately, the Director only conducted surveillance three times over a three-week period. However, before he removed the equipment, Hernandez and Lopez discovered the video camera. Although the Director subsequently showed them the recorded video and assured them that he had never recorded them, they filed suit, alleging a breach of their privacy rights.
The California Supreme Court stated that a plaintiff alleging a privacy violation in California must show that (1) the defendant intentionally intruded into a place, conversation, or matter as to which the plaintiff had a reasonable expectation of privacy; and (2) the intrusion occurred in a manner highly offensive to a reasonable person. With regard to the first element, the Court analyzed the reasonableness of the plaintiffs' privacy interests by considering such factors as the identity of the intruder, the extent to which other persons had access to the subject place, and the means by which the intrusion occurred. With regard to the second element, offensiveness, the Court considered the degree and setting of the intrusion, and the intruder's motives and objectives.
The Court first concluded that Hernandez and Lopez offered sufficient evidence that their employer intentionally intruded into a place as to which they had a reasonable expectation of privacy. Although they did not have a complete or absolute expectation of privacy in their work office, they did have a reasonable expectation that they would not be videotaped in their office without their consent. As the Court noted, "An enclosed office with a door that could be shut and locked, and window blinds that could be drawn, to allow the occupants to obtain some measure of refuge, to focus on their work, and to escape visual and aural interruptions from other sources, including their employer ... generates legitimate expectations that not all activities performed behind closed doors would be clerical and work related." The Court emphasized that a video recorder was involved, as "the 'unblinking lens' can be more penetrating than the naked eye."
Although the Court found that the employer had intentionally intruded into a place as to which Hernandez and Lopez had a reasonable expectation of privacy, it held that the intrusion was not sufficiently offensive to be actionable. The Director installed the surveillance system in a manner that caused it to record only Lopez's work station, for a limited amount of time, and during non-work hours when Lopez and Hernandez were away from work. In other words, he took steps to ensure that they were not captured on camera and videotape. The Court also took into account the fact that the employer had a compelling policy reason for videotaping Lopez's work station (i.e., to prevent the viewing of pornographic materials at the employer's premises).
In light of this California Supreme Court decision, employers should recognize that employees' privacy rights are not extinguished when they clock in for work. Therefore, an employer who intends to conduct surveillance on an employee or work location must consider the legitimacy of its motives, as well as the availability of less intrusive alternatives.