[Reader-list] California Supreme Court holds employees' privacy rights not invaded by video surveillance

[Taha Mehmood]

http://www.examiner.com/x-15436-LA-Employment-Law-Examiner~y2009m8d6-California-Supreme-Court-holds-employees-privacy-rights-not-invaded-by-video-surveillance

California Supreme Court holds employees' privacy rights not invaded
by video surveillance

August 6, 5:32 PMLA Employment Law ExaminerAnthony Zaller


Plaintiffs Hernandez and Lopez were employed by Hillsides Children
Center, Inc., which provided services to children with special needs
and who were abused. Hillsides discovered that someone was accessing
pornographic websites on a computer located in the Plaintiffs’ office
late in the evening.

The employer, citing its mission to protect abused children and to
protect itself from any legal liability, installed a video camera in
Plaintiffs’ office to indentify the perpetrator. Because the websites
were only being access at night, the video camera did not record any
of Plaintiffs’ activities during the day, and was only turned on at
night. The perpetrator was not caught.  But Plaintiffs’ discovered the
video camera in the office, and filed this lawsuit for violation of
their privacy rights.

The California Supreme Court noted that to succeed on their privacy
claims, Plaintiffs would need to prove that:

   1. The plaintiff must possess a legally protected privacy interest,
   2. The plaintiff’s expectations of privacy must be reasonable, and
   3. The plaintiff must show that the intrusion is so serious in
nature, scope, and actual or potential impact as to constitute an
egregious breach of social norms.

The Court noted that Plaintiffs were able to establish violation of
the first two elements in this case– that the employer intentionally
intruded into the Plaintiffs’ office in which they had a reasonable
expectation of privacy.

Offensiveness of the employer’s action

However, the Court held that Plaintiffs did not meet their burden of
proof for the third element. First, the Court held that the degree and
setting of the intrusion into Plaintiffs’ privacy was not very high.
The Court noted that the “place, time, and scope” of defendant’s
surveillance was not highly offensive. Second, the Court looked at the
employers motive and justifications for conducting the surveillance –
which had no element of being improper in this case. Given nature
Hillsides’ business of helping abused children, it was taking proper
action to prevent any possible harm to them. Given these factors, the
Court found that the Plaintiffs could not, as a matter of law, prove
that a reasonable person would find the intrusion into their privacy
offensive.

Take away for employers

    * Do not assume that you have the right to monitor employees
during working hours. As the case establishes, employees still have
reasonable expectations of privacy at work.
    * Do not assume a computer monitoring policy applies to video and
audio surveillance. The employer in this case tried to argue that the
computer monitoring policy diminished Plaintiffs’ expectation of
privacy at work, but the Court disagreed because the policy never
mentioned the possibility that employees could be videotaped at work.