“Advances in technology have increased the technological effectiveness of surveillance programs in the workplace. Lagging behind the technological advances, however, is the promulgation of bright-line rules regarding what an employer can and cannot do with regard to employee monitoring.”
One of the few bright-line rules currently in effect is California Labor Code section 435, which directly prohibits audio or video surveillance of employees in restrooms, locker rooms, or rooms designated for changing clothes, unless authorized by court order. Another is found in California Penal Code section Code section 632, which prohibits anyone (including employers) from tape recording communications carried on in circumstances which may reasonably indicate that any party to the communication desires it
to be confined to the parties thereto without the consent of all parties to the communication.
In issuing its decision in the matter of Hernandez v. Hillsides, Inc. , the California Supreme Court offered employers some guidance and recognition that employers can conduct surreptitious workplace surveillance as long as they have a legitimate business interest for doing so and properly tailor the methods and scope of surveillance.
In Hernandez , the defendant employer learned that someone, against company policy, was accessing pornographic websites from particular computers at its facility late at night. One of the computers from which the websites were accessed was located in an enclosed office shared by two clerical employees.
The defendant employer installed a hidden, remote operated camera in the office. Even though the employees were not suspected of the improper access, they were not told of the surveillance equipment. The defendant employer reasoned that the culprit may learn about the surveillance and avoid detection if more people knew about it.
It was undisputed that the camera could be made operable from a remote location at any time of the day or night and could be used for either live viewing or recording. However, the camera was not operated for either purpose during business hours. Neither of the employees, therefore, were ever viewed or recorded by the camera.
Despite the office being shared between the two of them, several administrators having a key to the office, and a broken “doggy” door making it possible for people to look into the office, the Supreme Court recognized the employees’ expectation of privacy and Privacy in the Workplace that it was invaded by the installation of the surveillance camera. In so deciding, the Supreme Court focused on the facts that the office was not accessible to the general public, the employees could lock the office and close the blinds, and the employees treated the office as a private place when they changed clothes there.
The Supreme Court concluded, however, that the surveillance under the circumstances was not “highly offensive” to a reasonable person, and “sufficiently serious” and unwarranted as to constitute an “egregious breach of the social norms.” Central to the Supreme Court’s decision was the limited time, place and scope of the intrusion: the defendant employer initially attempted to identify the culprit by installing the camera in another more public area, and was moved only after it was determined that it was too difficult to pinpoint who was inappropriately using the computers in the computer laboratory; the camera was aimed towards a single desk and computer workstation, confined to the area in which the unauthorized computer activity had occurred; access to the storage room where the camera controls were located and knowledge of the equipment was limited; the surveillance equipment was operational during a fairly limited window of time – after hours, once a week for three weeks; the camera never recorded the plaintiffs; and that the employer had a legitimate business reason for the monitoring – potential exposure to legal liability for offending conduct related to abuse of computer systems and internet access.
The plaintiff employees attempted to argue that the defendant employer should have engaged in the least-intrusive means of accomplishing its legitimate objectives. The Supreme Court refused to second-guess the employer’s conduct. Because the intrusion was “limited” and no information about plaintiffs was gathered, accessed or disclosed, it was not a case in which sensitive information was gathered and feasible safeguards were slipshod or nonexistent.
The California Supreme Court’s decision in Hernandez provides employers with some useful precedent in issues of workplace privacy. In its reasoning, the Supreme Court recognized the significant problems and liabilities faced by employers as a result of employee abuse of computer systems and internet access. When addressing the problems through monitoring of employees’ workplace, however, a few principles should be adhered to.
If practicable, issue workplace surveillance policies just as you would policies relating to internet and computer usage policies. This may tend to defeat an argument regarding an employee’s expectation of privacy.
“ The California Supreme Court’s decision … provides employers with some useful precedent in issues of workplace privacy.”
Prior to installing surveillance equipment, the employer should narrowly tailor the scope, duration, and methods of surveillance. Vital to the Supreme Court’s decision in Hernandez was the defendant employer’s limit on the scope, duration, and methods of surveillance. Although the Supreme Court refused to second-guess the defendant employer’s methods in that case, the refusal was largely based upon the Supreme Court’s determination that it was not a case where “feasible safeguards were slipshod or nonexistent.”
An employer’s failure to properly comply with California laws regarding workplace privacy may present significant consequences. Martin Dack of Dack Law Group has extensive experience counseling employers in labor and employment issues. □
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