United States: California Supreme Court Issues Guidance On Workplace Video Surveillance

Last Updated: August 12 2009

Article by John Nadolenco , Bronwyn F. Pollock and Jerome M. Jauffret

Originally published August 11, 2009

Keywords:  California Supreme Court, workplace video surveillance, Hernandez, Hillsides, hidden camera, pornographic web sites, employee privacy, invasion of privacy, privacy claims 

On August 3, 2009, the California Supreme Court issued a decision regarding the limited circumstances under which private California employers may lawfully engage in video surveillance of their employees. Hernandez, et al. v. Hillsides, Inc., et al., No. S147552, 2009 Cal. LEXIS 5565 (August 3, 2009). The court held that an employee may have a reasonable expectation of privacy in an enclosed office; however, no invasion of an employee's privacy will be actionable unless the employer's intrusion is "highly offensive" to a reasonable person, and "sufficiently serious" and unwarranted as to constitute an "egregious breach of the social norms."

In Hernandez, the plaintiffs, two employees of a private nonprofit residential facility for neglected and abused children, discovered that their employer had installed a hidden camera in their shared enclosed office for the purpose of identifying who had repeatedly used a computer after business hours to view pornography online. The employer had discovered the unauthorized access to pornographic web sites through monitoring of computer usage under a policy that had been provided to its employees. Such use violated the employer's policy and its goal of providing a safe haven for the children residing at its facility.

Because the unauthorized use had occurred late at nightand long after the end of the plaintiffs' shifts, the employer did not suspect plaintiffs, who performed clerical duties only during daytime business hours. Instead, the employer suspected that the pornography was accessed by an administrator or a program director, who worked outside daytime business hours and had keys both to plaintiffs' office and to the administration building where that office was located. The employer did not have a policy regarding video surveillance in employee work areas. The camera operated only outside of daytime business hours when plaintiffs were not in their office. Additionally, plaintiffs were never recorded, and the surveillance did not succeed in disclosing the culprit.

After plaintiffs discovered the surveillance equipment they brought claims against the employer and the facility director who had conducted the surveillance (collectively, "the employer") for invasion of privacy under both the common law and the privacy clause of the California Constitution, as well as claims for intentional and negligent infliction of emotional distress. The trial court granted summary judgment in favor of the employer on all of plaintiffs' claims, but the Court of Appeal reversed as to the privacy claims. The California Supreme Court reversed and found for the employer. The California Supreme Court held that, in analyzing privacy claims under the common law or the California Constitution, it would consider the following elements: (i) the nature of the intrusion upon reasonable expectations of privacy, and (ii) the offensiveness or seriousness of the intrusion, including any justification or other relevant interests.

Regarding the first element of plaintiffs' privacy claims, the California Supreme Court rejected the employer's argument that there had been no intrusion upon plaintiffs' reasonable expectation of privacy. The court explained that its analysis started from the premise that, "while privacy expectations may be significantly diminished in the workplace, they are not lacking altogether." The court noted that the employer provided plaintiffs with an enclosed office with a door that could be shut and locked and window blinds that could be drawn, and found that "[s]uch a protective setting generates expectations that not all activities performed behind closed doors would be clerical and work related." For example, employees who share an office, and who have an office that shields them from outside view, might perform grooming or hygiene activities, or conduct personal conversations, during the workday. The court held that "privacy is not wholly lacking because the occupants of an office can see one another, or because colleagues, supervisors, visitors, and security and maintenance personnel have varying degrees of access."

With respect to the nature of the intrusion upon plaintiffs' privacy, the California Supreme Court held that "employees who retreat into a shared or solo office, and who perform work and personal activities in relative seclusion there, would not reasonably expect to be the subject of televised spying and secret filming by their employer." The court noted that, while the employer had issued and disseminated a policy that computer use would be monitored through the computer system, it had not issued a policy on video surveillance in the workplace, and had not otherwise given notice to its employees that it would engage in such surveillance. The court concluded that "[p]laintiffs had no reasonable expectation that their employer would intrude so tangibly in their semi-private office."

However, the California Supreme Court held that plaintiffs had failed to establish the second element of their privacy claims. The court explained that a plaintiff must show more than the intrusion of a reasonable privacy interest. Actionable invasions of privacy also must be "highly offensive" to a reasonable person and "sufficiently serious" and unwarranted as to constitute an "egregious breach of the social norms."

The California Supreme Court noted that the employer had limited the location of its surveillance to the area where the unauthorized computer activity had occurred. The court also noted that the timing of the surveillance had been limited to outside business hours (i.e., when the unauthorized computer activity had occurred). Further, the court found that the employer had been successful in its efforts not to record plaintiffs, who were not suspected of the wrongdoing. The court held that the case "[did] not involve surveillance measures conducted for repugnant or unprotected reasons." Instead, the evidence was undisputed that the employer installed the video surveillance equipment to confirm its strong suspicion, based on information obtained through its publicized network tracking measures, that an unknown staff member was engaging in unauthorized and inappropriate computer use. The court concluded that, "given the apparent risks under existing law of doing nothing to avert the problem, and the limited range of available solutions, defendant's conduct was not highly offensive for purposes of establishing a tortious intrusion into private matters." The court also noted that the employer's assurances that it installed the surveillance equipment solely for the legitimate purpose of catching the culprits, and not to invade plaintiffs' privacy, was corroborated by its actions after plaintiffs discovered the surveillance equipment: the employer explained why the camera had been installed, tried to assuage plaintiffs' concerns about being suspected of wrong doing and secretly videotaped, and, upon demand, showed plaintiffs the surveillance tape without delay.

The California Supreme Court also rejected plaintiffs' argument that, even assuming that the employer's objectives were legitimate, the employer was required and had failed to prove that there were no less intrusive means of accomplishing those objectives. The court stated that it had in the past declined to impose on a private organization, acting in a situation involving decreased expectations of privacy, the burden of justifying its conduct as the "least offensive alternative" possible under the circumstances. The court added that the plaintiffs' argument also lacked merit because the alternatives they had suggested (i.e., better enforcement of the employer's log-on/password policy, installation of software monitoring programs, closer nighttime monitoring of the surveillance camera outside the administration building, increased nighttime security patrols, and receipt of employees' consent to video surveillance) would not necessarily have achieved the employer's goals of discovering the identity of the culprit.

California employers should not interpret the Hernandez decision as a wide-ranging authorization to videotape their employees in the workplace, and should seek legal advice before engaging in such surveillance. The employer in Hernandez engaged in video surveillance that was very limited in place, time and scope, and took extensive precautions to avoid invading plaintiffs' privacy. In its conclusion, the California Supreme Court cautioned that "[n]othing we say here is meant to encourage such surveillance measures, particularly in the absence of adequate notice to persons within camera range that their actions may be viewed and taped." Accordingly, California employers who want to engage in video surveillance of employees also should consider issuing and disseminating a policy on video surveillance, or using other effective methods of informing employees that they may be subjected to such surveillance.

Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and JSM, a Hong Kong partnership, and its associated entities in Asia. The Mayer Brown Practices are known as Mayer Brown JSM in Asia.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

Copyright 2009. Mayer Brown LLP, Mayer Brown International LLP, and/or JSM. All rights reserved.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions