California Labor &
Employment Law Blog

Aug. 5 2009

California Supreme Court Upholds Limitations On Workplace Right to Privacy

Topics: Court Decisions, Workplace Privacy

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.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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