Workplace Culture

Privacy Concerns and Employee Surveillance

By James Denis

Sep. 3, 2009

Hillsides is a residential treatment center for neglected and abused children in Pasadena, California. It discovered in July 2002 that someone had been using two company computers to view pornography late at night and early in the morning. In response, Hillsides installed surveillance equipment in the office where one of those computers was located, and where employees Abigail Hernandez and Maria-Jose Lopez worked. Neither employee was told about the surveillance. The surveillance equipment was hidden from view, always disabled during the day and only turned it on at night. Although this surveillance did not reveal any late-night entry to the office, in October 2002 Hernandez and Lopez discovered the camera.

Hernandez and Lopez filed a lawsuit in state court, alleging that Hillsides had invaded their privacy by placing the surveillance equipment in their office. The trial court found in favor of Hillsides. The court of appeals reversed, and Hillsides sought review of the decision by the California Supreme Court.
The California Supreme Court found in favor of Hillsides. It acknowledged that the employees had a reasonable expectation of privacy in their office, but that Hillsides’ activation of the surveillance equipment was “narrowly tailored to place, time and scope, and was prompted by legitimate business concerns” and that “plaintiffs were not at risk of being monitored or recorded during regular working hours and were never actually caught on camera or videotape.” (Hernandez v. Hillsides Inc., Cal., No. S147552, 8/3/09)

Impact: Employees may have enforceable privacy interests in work areas, such as enclosed offices where they work, changing rooms and lockers accessible only to the employee. While searches or surveillance of work areas can be defended with legitimate cause, employers should consider policies and procedures to alert employees to the employer’s reserved right to conduct such surveillance. Even then, surreptitious photographing of employees should be carefully limited.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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