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Calif. Supreme Court Narrows Workplace Privacy
The Recorder
August 05, 2009
Employees have a reasonable expectation of privacy in the workplace, the California Supreme Court held Monday, but that right has limits. And it doesn't prevent employers from conducting some hidden surveillance in an employee's office for "legitimate business concerns."
"An employer may have sound reasons for monitoring the workplace," Justice Marvin Baxter wrote for a unanimous court, "and an intrusion upon the employee's reasonable privacy expectations may not be egregious or actionable under the particular circumstances."
The ruling in Hernandez v. Hillsides Inc., 09 C.D.O.S. 9763 (pdf), expands the right to monitor employees in the workplace, but not in a surprising way, said Andrew Serwin, a privacy expert at Foley & Lardner who was not involved in the case. "If you're monitoring a health room in your office that has a locked door and no windows, that's different than here," he added.
Hernandez arose in October 2002 when office manager Abigail Hernandez and administrative assistant Maria Lopez discovered hidden video equipment in the office they shared at Pasadena's Hillsides Children's Center, a facility that houses abused children. Executive Director John Hitchcock had installed the equipment in an unsuccessful attempt to catch someone who had been viewing pornography on Lopez's computer in the wee hours of the morning.
Hitchcock was particularly concerned because many of the 66 boys and girls at the center had been the victims of emotional, physical and sexual abuse. No one was ever apprehended.
Neither Hernandez nor Lopez were suspects, and the camera -- activated only after work hours -- never recorded them. Nonetheless, they were distraught upon discovering the camera and sued for invasion of privacy.
Los Angeles County Superior Court Judge C. Edward Simpson granted summary judgment to the center. But Los Angeles' 2nd District Court of Appeal reversed in 2006, holding that the mere placement of the surveillance equipment in the women's office without their knowledge invaded their privacy.
On Monday, the Supreme Court justices split the difference, saying that while they could understand the two women's "dismay," the placement of the hidden camera wasn't egregious, and the employer had a valid reason for doing what he did.
"Activation of the surveillance system was narrowly tailored in place, time and scope, and was prompted by legitimate business concerns," Baxter wrote. "Plaintiffs were not at risk of being monitored or recorded during regular work hours and were never actually caught on camera or videotape."
However, the court said its ruling wasn't meant to "encourage" such surveillance measures.
"While plaintiffs' privacy interests in a shared office at work were far from absolute," Baxter wrote, "they 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."
At oral arguments in June, the women's attorney had argued that the center's executive director could have taken steps that were less intrusive. In Monday's ruling, the court rejected such options as advising Hernandez and Lopez about the surveillance or adopting stricter computer use regulations.
"Such steps might have stopped the improper use of Lopez's computer," Baxter wrote. "However, they would not have helped defendants identify the employee who performed such activity and who posed a risk of liability and harm in the workplace."
The women's lawyer, Mark Eisenberg of Eisenberg & Associates in Los Angeles, called the ruling a "step back for civil liberties in the workplace."
"The court has given employers a virtual green light to spy on employees via hidden camera for almost any reason," he said in an e-mail message, "as long as little to no evidence of the intrusion is made available to the employee."
Holger Besch, an associate in Seyfarth Shaw's Los Angeles office who represents Hillsides, would only say that his client "is very pleased with the decision and feels that the court reached the right result."
Paul Cane Jr., a partner in Paul, Hastings, Janofsky & Walker's San Francisco office who represented the Employers Group and the California Employment Law Council as amici curiae , said the ruling had a "little something for both sides."
"What is significant, though," he added, "is that it was a summary judgment decision. All seven justices agreed that the legitimacy of an alleged intrusion can be resolved as a matter of law without a trial."
