The California Supreme Court has issued its decision in Hernandez v. Hillsides, Inc., finding that an employer’s placement of a hidden camera in an office used by two employees did not violate the employees’ right to privacy.  This case has been closely watched (OK, pun intended) as it worked its way through the appellate courts.  Like all workplace privacy cases in California, the case is highly fact-specific and should not be interpreted as encouraging employers to conduct clandestine surveillance of employees.

Hillsides operated a residential facility for neglected and abused children.  Plaintiffs Hernandez and Lopez were employees of Hillsides who shared an enclosed office and performed clerical work during daytime business hours.  Hillsides learned that late at night, after the plaintiffs had left the premises, an unknown person repeatedly used a computer in the plaintiffs’ office to access and view pornographic web sites.  Concerned that the culprit might be a staff member who worked with the children who resided there, Hillsides set up the hidden camera, which could be operated from a remote location at any time.  Neither of the plaintiffs was suspected of being the culprit, and the employer only activated the camera after hours when the plaintiffs were gone.  The plaintiffs’ activities were never viewed or recorded by means of the surveillance system.

As often occurs in such cases, the employees discovered the camera in their office and sued the employer for invasion of privacy under the California constitution and the common law.  The California Supreme Court found that the employer intentionally intruded into a place in which the employees had a reasonable expectation of privacy.  The court observed that while privacy expectations are diminished in the workplace, they are not lacking altogether.  The employer secretly installed equipment that gave it the capacity to watch and record employee activities behind closed doors in an office to which others had only limited access.  The office’s setting generated a legitimate expectation that the employees would not be subjected to televised spying and secret filming by their employer. 

However, the court ruled in the employer’s favor because it found that the invasion of the plaintiffs’ privacy would not have been highly offensive to a reasonable person.  The employer took a measured approach in choosing the location to place the camera by aiming it only at the desk and computer on which the unauthorized activity had occurred.  The employer did not operate the camera during business hours, and the plaintiffs’ activities were never actually recorded.  Additionally, in light of the employer’s goal of providing a wholesome environment for the abused children in its care, the employer was justified in taking measures to determine who was accessing the pornographic websites.

If nothing else, this case serves as a reminder that it is seldom clear whether an employee has a protectable expectation of privacy, or whether an employer’s conduct violates that privacy interest.  These case will continue to be decided on their specific facts.  In general, video surveillance in the workplace should only be used in limited situations, and only after employees are put on notice of the surveillance.