Date: Aug 24, 2009
The Supreme Court of California recently reversed the decision of the Court of Appeal that permitted two employees' workplace privacy claims to proceed to trial in Hernandez v. Hillsides, Inc. The decision is significant for its analysis of, and guidance with respect to, employee expectations of privacy in the workplace and the nature and scope of permissible employee surveillance.
Defendants, Hillsides, Inc. and Hillsides Children Center, Inc., operated a non-profit residential facility for emotionally, physically, and sexually abused children. Plaintiffs, Abigail Hernandez and Maria-Jose Lopez, were Hillsides employees who shared an enclosed office. Another Defendant, John Hitchcock, the facility director, installed a hidden camera in Plaintiffs' office without informing them when he learned that someone had been using a computer in that office after hours to view pornographic Internet sites, in violation of the facility's policy and its goal of providing a safe haven for children. The camera was operated after business hours and for a limited period of time.
Upon discovering the hidden camera, Plaintiffs filed a suit alleging violations of their right to privacy and intentional and negligent infliction of emotional distress. The trial court granted Defendants' motion for summary judgment and dismissed the case. However, the Court of Appeal reversed, finding triable issues that Plaintiffs suffered an intrusion of privacy that was so unjustified and offensive as to constitute a violation of Plaintiffs' privacy. Defendants alleged that there was no evidence that they targeted and recorded Plaintiffs.
California Supreme Court Decision
On review, the Supreme Court reversed the Court of Appeal and affirmed the decision of the trial court, albeit on narrower grounds. The Court agreed with the Court of Appeal that Plaintiffs had raised a triable issue on the first element of a privacy cause of action: whether Defendants' conduct intruded upon Plaintiffs' privacy. The trial court had held that in the absence of proof that Plaintiffs had been viewed or recorded, they could not satisfy this element. Not so, said the Supreme Court. Installation of a hidden surveillance camera constitutes intrusion on employee privacy in the absence of employee notice.
The Supreme Court parted with the Court of Appeal over Plaintiffs' right to have a jury decide whether Defendants' intrusion would be highly offensive to a reasonable person" and "sufficiently serious and unwarranted as to constitute an egregious breach of the social norms." The Court clarified that these issues were to be decided by the trial judge, as a matter of law, based on the undisputed evidence relating to the degree and setting of the intrusion and Defendants' motives, justifications and related issues. Because the surveillance was confined to the area of unauthorized computer use, was limited to once a week for three weeks after normal business hours and discontinued when it failed to yield results, and access to the room where the content could be monitored was limited, the Court concluded that the employer's actions were hardly excessive or egregious.
The Court was further persuaded to rule in Defendants' favor given Defendants' duty to protect a vulnerable resident population, their efforts to deter unauthorized computer access to pornographic materials by written policy, and the degree of difficulty involved in policing the policy after normal work hours.
The Hernandez case offers guidance for employers that use or are considering using video surveillance equipment to monitor employees. Employers should carefully assess the business purpose and need for conducting the activity, the scope and duration of the activity, and whether the activity is confined to an essentially private space or whether it will be performed in a more public area where employees have a reduced expectation of privacy. In addition, employers should review their internal policies and procedures related to workplace privacy, including monitoring of computers, e-mails and websites, and determine whether and to what extent employees should be informed about the possibility of video surveillance. Providing notice to employees regarding surveillance activities can reduce their reasonable expectations of privacy and give them an opportunity to tailor their behavior accordingly. Employers should also require all employees to review the employee handbook and internal policies and procedures, as well as all revisions to such documents that may be made from time to time, and affirm in writing that they have reviewed the documents and agree to be bound by them.
As the Supreme Court explained in Hernandez, some states, including California, have laws prohibiting the use of concealed cameras in certain areas where individuals have expectations of privacy or where certain conditions exist, such as in a bedroom, bathroom, or dressing room. In addition, federal and state laws exist governing the interception of wire, oral, and electronic communications. The federal "Wiretap Act," as amended by the Electronic Communications Privacy Act of 1986, generally prohibits the intentional interception of any wire, oral, or electronic communication, such as by the use of an electronic, mechanical, or other device, but provides exceptions for services providers and if the person intercepting the communication is a party to the communication or one party to the communication has consented. State laws vary, with some states permitting the recording of communications if just one party to the communication consents, and other states, including California, only permitting the recording if all parties consent. Thus, under some state laws, employers may not lawfully record communications without the consent of all parties to the communications. These are all relevant considerations for employers as more tools and technologies for monitoring the workplace become available to them.
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