In an area of the law fraught with risk and uncertainty, the California Supreme Court in Hernandez v. Hillsides, Inc., (S147552, August 3, 2009) has upheld summary judgment in favor of an employer who secretly installed video equipment in an enclosed office to attempt to catch whoever was accessing pornographic Web sites on its computers. Yet California employers should not necessarily jump for joy at the ruling.

Despite its decision in favor of the employer, the court held that the two plaintiff employees "had a reasonable expectation under widely held social norms that their employer would not install video equipment capable of monitoring and recording their activities, personal and work related, behind closed doors without their knowledge or consent." It found for the employer because, in this case, the intrusion into the reasonable expectation of privacy was not, as a matter of law, highly offensive and sufficiently serious to constitute a privacy violation. "Any actual surveillance was drastically limited in nature and scope, exempting plaintiffs from its reach," and the employer was "motivated by strong countervailing concerns," the court found.

Hillsides is a residential treatment center for children who have been victims of emotional, physical, and sexual abuse. It has fairly stringent security procedures in place. When it determined that pornographic sites were being accessed late at night on two computers, apparently by one or more employees, secret video surveillance was set up. One computer was located in an enclosed office shared by the two plaintiff clerical employees, who were not accused of misconduct. It was undisputed that these employees were never viewed or recorded by the surveillance equipment because it was enabled after they left work and disabled before they arrived.

The Supreme Court distilled California privacy law to two elements: first, the nature of any intrusion upon reasonable expectations of privacy, and second, the offensiveness or seriousness of the intrusion, including any justification and other relevant interests. As to the first element, the court observed 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 pointed out that the employees had never received any warning that they might be subject to the risk of such surveillance and that they had not agreed to it in advance. As to the second element, the court noted that the surveillance was limited in both time and scope, that care was taken not to video the plaintiff employees, and that the employer had legitimate reasons to attempt to determine who was accessing pornographic sites.

Despite the victory for the employer in Hillsides, however, privacy interests of employees do exist in the workplace, and employers should be extremely cautious about intruding into such privacy. The first line of defense for an employer is to issue a warning that certain areas may not be private or to have an agreement to intrusion, such as for searches. If the intrusion must remain confidential, the employer should take great care that it is extremely limited in time and scope and that there are substantial business reasons for the intrusion. As the Supreme Court stated at the conclusion of its Hillsides opinion, "Nothing 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."

Contact Information

If you have questions or concerns regarding the Hillsides decision or privacy interests in the workplace generally, please contact any member of Ballard Spahr's Labor and Employment Group.


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