California Labor & Employment Law Blog

By Robin E. Weideman

The United States Supreme Court has granted review in Quon v. Arch Wireless, which deals with the increasingly emerging issue of the scope of an employee's privacy in electronic messages sent using employer-provided equipment.  Our previous post regarding the Quon case is here.  Although the case deals with a public employer and is, therefore, specifically focused on the scope of Fourth Amendment privacy protection involving the use of text messaging in a fairly case-specific factual setting, the case may well provide some broader insight on the Supreme Court's view toward privacy issues in the electronic era that will be of use to private sector employers as well.  In the meantime, employers grappling with monitoring of employee electronic usage are best advised to have clear policies signed off on by employees, making clear that employees do not have an expectation of privacy in their usage of employer provided equipment and that the employer can and will monitor such usage.  Because there generally is not a "one-size-fits all" policy for all employment situations, employers are best advised to consult with counsel in drafting a comprehensive policy.  We will continue to provide updates regarding significant developments in the Quon case, and similar workplace privacy cases affecting California employers.

By Robin E. Weideman

Earlier this week, the California Supreme Court issued its decision in Hernandez v. Hillsides, Inc., holding that two employees could not prevail on an invasion of privacy claim against their employer even though the employer had set up hidden video surveillance equipment in their office.  The plaintiffs in the case were two clerical employees who shared an office.  The employer discovered that someone was accessing pornography sites after hours on one of the plaintiffs’ computers.  The employer did not suspect either plaintiff of having accessed the pornography because the conduct occurred after hours. In an effort to catch the wrongdoer, the employer set up a hidden camera in the plaintiffs’ office. According to the employer, the camera was not activated during business hours and plaintiffs were never actually recorded.  The camera was only activated after hours when plaintiffs were not present.  However, one day during work, the plaintiffs discovered the hidden camera equipment and complained.  They later sued the employer for invasion of privacy.

The California Supreme Court held that plaintiffs could not prevail on their invasion of privacy claim against the employer.  Notably, the Court did find that plaintiffs had a reasonable expectation of privacy in their workplace and that their privacy was intruded upon by virtue of the hidden surveillance system.  However, the Court held that even though plaintiffs’ privacy was intruded upon, this was not enough for them to prevail on their claim against their employer.  In order to prevail, plaintiffs would also have to prove that the intrusion would be “highly offensive” to a reasonable person, and “sufficiently serious” and unwarranted as to constitute an “egregious breach of social norms.”  Based on the facts before the Court, the Court held that the employer’s conduct was not highly offensive or sufficiently serious.  The Court relied heavily on employer’s motivation for installing the equipment, the employer’s limited use of the equipment after hours, and the fact that the plaintiffs themselves were never actually recorded (nor did the employer even intend to record them).

This case provides some good guidance on applicable principles for employers to consider when implementing measures that might intrude on employee privacy.  Although the employees in Hernandez were unsuccessful on their invasion of privacy claim, the case does not stand for any broad proposition that employees do not have a reasonable expectation of privacy in the workplace.  The case in fact makes clear that they do have an expectation of privacy, though that expectation may be diminished by virtue of employer policies making clear that employees should not expect privacy.  The bottom line is that there is no “bright line” rule as to when an employee has an expectation of privacy or when an employer’s conduct may violate employee privacy.  The analysis is very fact specific and employers are cautioned to seek legal advice before implementing measures that may intrude on employee privacy.