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Hidden Camera Case Turns on Expectation of Privacy in Workplace
The Recorder
June 05, 2009
Suspecting someone was viewing pornographic Web sites on a company computer after hours, the executive director of a Los Angeles-area center for abused children set up a secret video system in 2002 to catch the culprit.
No one was apprehended, but the two women who shared the locked office that was placed under surveillance sued for invasion of privacy -- even though the only images ever captured were shots of an empty desk and their boss setting up the camera.
That was what the California Supreme Court had to work with Wednesday during oral arguments in Hernandez v. Hillsides Inc., S147552: Does the mere attempt to videotape an individual qualify as an invasion of privacy or must there be an actual intrusion -- such as the taping of an innocent person changing clothes -- for liability to come into play?
Questions asked by the justices, holding court in Los Angeles, suggested they believe employees should have some expectation of privacy in the workplace, but that it shouldn't be unlimited.
"I don't own the place. Other people are there," Justice Carol Corrigan said at one point. "And my reasonable expectation of privacy is based on what? Is it reasonable to expect no one will go into my office when I'm not there?"
Office manager Abigail Hernandez and administrative assistant Maria Lopez sued Hillsides Children's Center Inc. in 2003, claiming the company and its executive director, John Hitchcock, invaded their privacy by installing a surveillance camera without their knowledge. Hitchcock admitted in the trial court that the women were not suspects, but weren't told about the camera so that word wouldn't get out that he was trying to catch the person viewing porn between 2 and 5 a.m.
Los Angeles County Superior Court Judge C. Edward Simpson dismissed the suit, holding that the women weren't actually videotaped and that they had a diminished expectation of privacy that was overcome by the center's need to protect children residing at the facility.
But L.A.'s 2nd District Court of Appeal reversed in 2006, saying that the mere placement of the surveillance equipment in the women's office invaded their privacy because it allowed anyone with access to activate the surveillance system at any time.
In Supreme Court papers, Hillsides' lawyers argued that the court's decision imposes liability "for merely thinking about or preparing to commit an act that is ultimately never completed."
The Supreme Court's justices seemed sympathetic to both sides on Wednesday.
"Surely, anyone who has an office has a certain expectation of privacy, that secret recording devices would not be installed," Justice Joyce Kennard told Holger Besch, an associate in Seyfarth Shaw's Los Angeles office who represented Hillsides.
"If these two women were not suspects," Justice Carlos Moreno chimed in, "why weren't they given notice?"
Besch responded that the executive director's prime concern was catching the porn viewer and that employees were kept on a "need-to-know basis." In court papers, Besch said the executive director considered Hernandez and Lopez "gossips."
Kennard told Besch that she felt he had a big hurdle getting around Sanders v. American Broadcasting Cos., 20 Cal.4th 907, a 1999 California Supreme Court ruling that said even employees lacking a complete expectation of privacy may still recover damages for invasion of privacy based on covert videotaping.
"I don't see how you get around Sanders," Kennard said.
Besch argued that was a different situation in that it involved a television reporter who videotaped conversations after secretly taking a position with a company and then broadcasting them.
Kennard also challenged Paul Cane Jr., a partner in Paul, Hastings, Janofsky & Walker's San Francisco office who argued on behalf of the Employers Group and the California Employment Law Council, which signed on as amici curiae supporting Hillsides. She wanted to know why Hillsides shouldn't be liable for intentionally installing a hidden camera when neither Hernandez or Lopez were suspects.
"What facts do you have here," she asked, "that support your argument that when [the camera was] installed it was without the intent to invade privacy?"
The plaintiffs lawyer, Mark Eisenberg of Los Angeles, didn't escape without a lot of questions either. Justice Marvin Baxter put him on the spot when he asked if employers aren't put into a "Catch-22 situation" if they suspect someone of illicitly viewing porn on site -- particularly at a home for abused children -- but don't do anything about it.
"If the employer doesn't take reasonable steps to identify and avoid risks," Baxter said, "and something happens to the children, the employer is on the hook for liability."
Eisenberg tried to explain that wasn't the situation in this case, but was stopped by Justice Ming Chin, who said, "It doesn't take a lot of imagination to figure" that something like that could happen.
Eisenberg, of Eisenberg & Associates, also told the justices that an employer can avoid liability by taking less-intrusive steps to confront a problem.
"How much more difficult is it," he asked, "to put a camera in the hallway?"
A ruling is due in 90 days.
