Tuesday, September 7, 2010

Tips for Employers in a tough economy...

I saw an interesting commentary in the OC Register over the Labor Day weekend about some of the pitfalls of getting "creative" with employee rewards in a tough economy and thought that I would share. The bottom line is that an employer must be careful in exactly how he/she tries to "reward" loyal employees by giving them newer, more important sounding, titles as a means of avoiding pay raises....

You can see the article for yourself at http://jan.ocregister.com/2010/08/30/title-instead-of-a-raise-watch-out/44309/

Thursday, June 17, 2010

Supreme Court Okays Search of Employee Text Messages

In December we posted an entry regarding privacy of text messages in the employment arena, highlighting the case of Quon v. Arch Wireless Operating Co., Inc. 529 F.3d 892 (9th Cir. 2008); review granted City of Ontario, Cal. v. Quon, --- S.Ct. ----, 2009 WL 1146443, (U.S. Dec 14, 2009) (NO. 08-1332). The case centered on whether an employer has a right to review an employee's text messages. On June 17, 2010, the U.S. Supreme Court issued its ruling on that case and, in a fairly narrow opinion, held that the employer did have the right to review the text messages.

To review, in 2001, the Ontario Police Dept. ("OPD") bought and issued pagers to Jeff Quon ("Quon") and other SWAT Team members in order to help the SWAT Team mobilize and respond to emergency situations. The pagers were administered through Arch Wireless ("Arch"), who billed OPD directly for the pager service. At the time that the pagers were issued, OPD had a “Computer Usage, Internet and E-Mail Policy” (Computer Policy) that applied to all employees. The policy provided that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” Though the policy did not explicitly apply to text messages, the Court found that meetings were held whereby OPD warned employees that it would apply to their newly issued pagers. After issuance of the pagers, the bills for the pager usage showed "overages" above and beyond the number of characters allotted under OPD's plan. These overages were apparently overlooked by the department's supervisors, if the employee agreed to pay for the excess charges.

After several months of overages, Lloyd Scharf, the Chief for OPD, decided to audit the usage of the pagers, apparently claiming that he was "tired of being a bill collector" and to determine if the pagers were being used for actual OPD business or personal use. At the Chief's direction, OPD requested the textual content of the pages from Arch, and a review of the texts appeared to establish that Quon was using his pager predominantly for personal use. (According the Court's findings of fact, Arch supplied the actual content of the texts which appeared to show that Quon sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 messages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only 3 were related to police business.) Quon then allegedly faced discipline for violating OPD rules by pursuing personal matters while on duty.

What gives these facts the additional "sex appeal" is that on reviewing the text messages, many were salacious or sexual in nature, including texts between his ex-wife and new girlfriend and others in the department. Quon and other officers whose messages were also reviewed in the Quon inquiry sued both the department and Arch, claiming violation of their 4th Amendment rights, and violation of the Stored Communications Act ("SCA").

On competing motions for Summary Judgment, the District Court held, relying on the plurality opinion in O’Connor v. Ortega, 480 U. S. 709, that Quon had a "reasonable expectation of privacy" in the content of his messages. Whether the audit was nonetheless reasonable, the court concluded, turned on whether Chief Scharf used it for the improper purpose of determining if Quon was using his pager to waste time, or for the legitimate purpose of determining the efficacy of existing character limits to ensure that officers were not paying hidden work-related costs. “[I]f the purpose for the audit was to determine if Quon was using his pager to‘play games’ and ‘waste time,’ then the audit was not constitutionally reasonable”; but if the audit’s purpose“was to determine the efficacy of the existing character limits to ensure that officers were not paying hidden work related costs, . . . no constitutional violation occurred.” [445 F. Supp. 2d, at 1146.] The District Court then held a jury trial to determine the purpose of the audit. The jury concluded that Scharf ordered the audit to determine the efficacy of the character limits. The District Court accordingly held that petitioners did not violate the Fourth Amendment. It entered judgment in their favor. Quon appealed to the 9th Circuit.

The 9th Circuit reversed, in part. The panel agreed with the District Court that Quon had a "reasonable expectation of privacy" in his text messages but disagreed with the District Court about whether the search was reasonable. Even though the search was conducted for “a legitimate work-related rationale,” the Court of Appeals concluded, it “was not reasonable in scope.” [529 F. 3d 892, 980 (2008)] Which all leads us to the Supreme Court's finding, overruling the 9th Circuit.

Justice Kennedy, writing for the Court, held that the review of Quon’s pager transcripts was reasonable because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. Echoing the findings of the District Court and the 9th Circuit, the Court found that Quon did have an expectation of privacy, and deemed the review of his text messages to be "searches" under the 4th Amendment. However, the Court concluded that the "searches" were justified and that OPD had “reasonable grounds for [finding it] necessary for a noninvestigatory work-related purpose,” in that the Chief had ordered the audit to determine whether the City’s contractual character limit was sufficient to meet the City’s needs. The review of Quon's messages was also “reasonably related to the objectives of the search,” because both the City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or, on the other hand, that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine whether either of these factors caused Quon’s overages, and the review was also not “excessively intrusive.” It is clear that the Court accepted that Quon had a "reasonable expectation of privacy", but concluded that his 4th Amendment rights were not violated, and instead focused on the fact that the search was legitimately work-related and not excessively instrusive.

While this case dealt with government workers, Justice Kennedy also suggested that under the same set of facts, its ruling would apply to all workers - public or private. ("The court also concludes that the search would be regarded as reasonable and normal in the private-employer context.")

Interestingly, Justice Kennedy also cautioned employees about using employer electronics for personal use. While he noted that it is true that many employers accept or tolerate personal communications on company time and equipment, he also suggested that employees who want to avoid the potential embarrassment of having those communications revealed might "want to purchase and pay for their own" cell phones and other devices.

Concluding thoughts-

First of all, from the employee's perspective, we think that the important lesson provided here would be just what Justice Kennedy addressed, almost in passing. If you don't want your employer knowing about what you post in an email or on other electronic media, don't use the equipment provided by the employer.

From the vantage point of the employer, a "first blush" reading of this case might lead one to believe that this is a significant "employer's rights" victory. However, we would caution that this case is, in the Court's own words, to be narrowly applied in this electronic age. As noted by Justice Kennedy, the "Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347, 353 (1967)." He also added that "[p]rudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices..." and that a "broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds."

In short, it appears that the Court concedes it cannot keep up with the technology, saying its ruling applied to the facts of this case, and cautioned against predicting the outcome of future cases based on this one.

The key issue going forward for employer/employee policy relations is that the employer intending to review employee communication on company equipment must make that a clearly communicated policy and, to be safe, make sure that your employees acknowledge receipt of the policy.

To review the complete Supreme Court opinion, go to http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf

Monday, May 17, 2010

Freedom of Speech in the Workplace???

The First Amendment provide that “Congress shall make no law … abridging the freedom of speech…” This venerable principle from the U.S. Constitution has been the subject of innumerable decisions from the U.S. Supreme Court, generating lasting quotes that pervade our daily lives (who can forget lessons about “yelling ‘fire’ in a crowded theater?”). Yet, a recent article on MSN reminded me of just how “tenuous” that right to free speech may be in the workplace.

On May 17, 2010, MSN.com had a news article with the headline: “Waitress fired for gripe about tip on Facebook.” [http://www.msnbc.msn.com/id/37192342/from/ET?gt1=43001] As addressed in that article, a North Carolina waitress was fired by her pizza joint employer after she complained on her Facebook wall about customers that had left only a $5 tip, after she waited on them for nearly 3 hours.

This got me thinking about just what “rights” do employees have in the workplace, or from the other side of the coin, what rights do employers have on this issue? Coming as it does on the anniversary of Brown v. Board of Education, I start this post with a quote from the late U.S. Supreme Court Justice Thurgood Marshall re: the 1st Amendment and freedom of speech:

“Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship.” (Emphasis added.)

Given these pronouncements (and many others like this passage), one would think that “free speech” rights of the 1st Amendment would have prohibited the employer from firing our under appreciated waitress from North Carolina. Certainly, such a result could not have occurred in California? Or, could it?

California Labor Code § 96(k) makes it unlawful for an employer to demote, suspend, or discharge an employee for lawful conduct occurring during nonworking hours away from the employer’s premises.

Further, Labor Code § 98.6 then expressly refers to Labor Code § 96(k) and provides that “[n]o person shall discharge an employee or in any manner discriminate against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96.” [Labor Code § 98.6(a)]

Further, Labor Code § 98.6 further provides that “any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this chapter, including the conduct described in Labor Code § 96(k) and/or Labor Code § 1101 shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer. [Labor Code § 98.6(b) (Emphasis added.)]

Using these provisions, one might assume that an employer would not be able to fire an employee based on the free exercise of his or her right to free speech. However, the case of Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 14 Cal.Rptr.3d 893 (“Grinzi”) provides otherwise.

In Grinzi, the Plaintiff used the 1st Amendment and these Labor Code provisions to assert that she was wrongfully terminated in violation of public policy. Yet, the Court in Grinzi held that the plaintiff's public policy claims based on the First Amendment of the United States Constitution failed.

Ms. Grinzi was fired because she was a member of an organization of which the employer disapproved. [Id . at 78.] The plaintiff asserted a wrongful termination claim based on the First Amendment. [Id.] The court rejected the claim, however, concluding that because the First Amendment, the constitutional provision on which the plaintiff relied, did not adequately delineate a public policy violation in this case since it protects only against government conduct and not that of private employers. [Id. at 80.] The court noted that a contrary result would be unreasonable because it would require employers “to realize they must comply with requirements from which they are exempt or suffer the possibility of tort liability.” [Id. at 81-82.] Simply put: the First Amendment protects freedom of speech against action taken by the government. It does not establish or support a public policy forbidding private employers from terminating employees for exercise of their First Amendment rights. [Grinzi, supra, 120 CA 4th 72, 84]

The Court in Grinzi also addressed Plaintiff's arguments based on Labor Code §§ 96 and 98.6. While Labor Code § 98.6 prohibits discharging or discriminating against an employee for “conduct described in Lab.C. § 96(k)” ... authorizing the Labor Commissioner to take assignment of wage claims “for loss of wages as the result of demotion, suspension or discharge for lawful conduct occurring during nonworking hours away from the employer's premises,” [Lab.C. § 96(k) (emphasis added); this statute does not provide employees with substantive rights. It is merely “a procedural mechanism that allows the Commissioner to assert, on behalf of employees, their independently recognized constitutional rights.” [Barbee v. Household Automotive Finance Corp. (2003) 113 CA 4th 525, 536]

Thus, under California law, it would appear that a private employer may be permitted to terminate an employee for exercising “free speech” rights.

On the other hand, First Amendment rights do appear to be protected in the employment arena, where the employee is employed by a governmental entity.

“A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment. (Citation). On the other hand, a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public…. Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification ‘far stronger than mere speculation’ in regulating it.” [City of San Diego, Cal. v. Roe, 543 U.S. 77, 80, 125 S.Ct. 521, 523 (2004)] (In the final analysis in that case, however, the Court found that the government employee was properly fired for his “speech” of offering pornographic images of himself on the internet.)

In the end, the “bottom line” analysis must focus again on the 1st Amendment itself, which provides that “Congress shall make no law… abridging the freedom of speech.” The Supreme Court has generally interpreted that to mean government action that limits free speech must be strictly scrutinized. When all of this filters down to the employee/employer relationship, since the government did not restrict the waitress’ speech regarding her miserly tip, at least in California one would expect the courts to uphold that termination.

The final word of warning: be careful what you post on your social media sites.

Tuesday, April 20, 2010

Text Messaging Case Update

On Monday, April 19, 2010, the U.S. Supreme Court heard arguments in the Quon case that was the subject of my post on December 14, 2009. As was discussed, that case questions whether the City of Ontario violated a public employee's rights by reading sexually explicit text messages on an electronic device owned by the Police Department.

Lawyers for Sgt. Jeff Quon have argued that he had a "reasonable expectation" of privacy on his official wireless two-way text-messaging pager, even thoguh the texting device was owned by the Ontario, California, Police Department. Quon's supervisors examined his private text messages with his wife and girlfriend without his permission in 2002, according to court documents. His supervisors said they looked at his text messages after noticing he was going over the monthly allotted limit, and had commissioned an audit to determine if he was using the device for personal use. In that audit, the city discovered the racy text messages on Quon's pager.

Though the City had a policy that prohibited personal use of City owned technology, Quon said he believed he was allowed to use the device for personal use because company policy was unclear. This argument was based on his claims that the personal use policy was never enforced and thus Quon said he believed he was allowed to use the device for personal use. (Quon said there was an "informal policy [that] allowed officers to maintain their privacy in their text messages as long as they paid the overage charges." Quon had been paying the overage charges under an informal agreement with one of his managers.)

The 9th Circuit agreed, and found that Quon had a "reasonable expectation of privacy" in those texts.

Since oral arguments were only heard on Monday, it's not likely we'll have a decision for several months.

But, depending on just how broadly the Court's decision extends, the ruling could have broad implications on how public and private employees can be monitored. The case will also likely spur more efforts to educate employees about the consequences of sharing personal information on work e-mail or phones.

Further, regarding employers obligations, it will likely result in employers making greater efforts to not only update policies regarding the use of company electronic devices, but also require them to make sure the policy is consistently applied. The lack of consistent application of the written policy was apparently the issue that doomed the City of Ontario's case.

Wednesday, March 3, 2010

Juror Perceptions of Trial Lawyers

I know this is a blog for employment issues, but as a litigator, I always have to approach a case as though it were going to trial. Thus, trial strategy and technique is often key to properly representing your client in employment matters. With that backdrop, I received the article below, and thought that it very nicely addresses a number of issues we deal with as trial lawyers and thought it worthy of passing along to anyone who'd care to read it. My thanks to Harry Plotkin of Next Jury for the following essay.


I have no doubt that each one of you takes great pains to present your case as perfectly as you can to a jury. You probably even make every effort to present YOURSELF perfectly to the jury. Keep in mind when you’re preparing for trial and thinking about all the strategies that go into presenting yourself, your client, and your case that the most challenging thing about a perfect presentation is that YOU are not the judge that matters. A case presented perfectly to you, a judge, or any lawyer is probably NOT a perfect case to a jury. So if you’re taking a case to a jury trial, remember that only their opinions matter. And while you’re at it, realize that your jurors’ opinions about you and your case aren’t always logical or fair.
This month, I’m going to discuss your jurors’ perceptions of you, the lawyer. Not their perceptions of your client or your case, but of you. Even though you didn’t have anything to do with the events surrounding the facts and parties at trial, you are the most important figure the jurors have to trust in order to trust your client and your case. If the jurors trust you, they’ll trust what you have to say. If the jurors don’t trust the messenger, they won’t trust the message. To make matters worse, jurors seem to distrust lawyers more these days. They each come into the courtroom with an idea of the stereotypical dishonest lawyer seared into their brains, and for many jurors, you are guilty of being that stereotypical lawyer until proven innocent. So this month, let’s discuss how jurors go about figuring out if you’re one of the cliché, dishonest lawyers they distrust.

Let’s start with a simple one. Jurors expect that a stereotypical lawyer will dress to impress, in a suit with a Rolex. Jurors trust you when you dress to look more approachable. "Approachable" means something different depending on your personality and where you practice, but it may mean wearing less expensive, less formal attire. Perhaps a lighter suit, or a blouse or sport coat instead of a two- or three-piece. Dressing to be more approachable is especially important on those days in which you’re making your first impression and interacting with the jury: jury selection, opening statements, and closing arguments.

Jurors expect the stereotypical lawyer to force their own point-of-view down the jurors’ throats in trial, and too often lawyers do just that at the worst possible time—in voir dire, when you should be letting the jurors express themselves. Few things offend the jurors more than a lawyer who asks them questions but then cuts them off, tells them what to think, and doesn’t let them be entitled to their own opinions. Voir dire is NOT the time to tell your jurors how they should think, but many lawyers are unknowingly guilty of doing just that. Anytime you ask the jurors "wouldn’t you agree that..." you are forcing your point-of-view on them. Even when they claim to agree, many really don’t, so it’s a waste of your time. Your jurors have opinions, some very strong ones, and many do NOT agree with you, no matter what you lecture to them in voir dire. So never ask a juror a question like "wouldn’t you agree that..." or "can you all promise me you’ll follow the court’s instruction that..." If a juror doesn’t agree, or doesn’t really think the jury instruction is fair, they won’t be persuaded, no matter what they say, and they’ll resent you for asking.

Jurors trust you when you listen to them. Voir dire is your only opportunity to show them that you want to listen to them. And even though there are ways to subtly persuade jurors in voir dire, a large part of voir dire should involve shutting up and letting the jurors tell you how they feel. You can kill two birds with one stone during jury selection—by asking open-ended questions and asking lots of "how do you feel about that?" questions, you’ll not only identify hostile jurors to de-select and learn how your remaining jurors feel about the issues of your case, but just as importantly you’ll show your jurors that you care enough to listen. Jurors trust lawyers who listen, and voir dire is your best and only chance to show your jurors that you accept and understand every point-of-view. Invite disagreements, listen carefully and understandingly to jurors who are completely hostile to your case issues, and show even the craziest jurors that you understand what they’re saying and how they feel.

During trial, jurors expect the stereotypically dishonest, defensive lawyer to OBJECT a lot. They expect you to object every time the other side says something damaging to your case that worries you. In fact, most jurors believe that every time a lawyer objects, it’s BECAUSE they are nervous, guilty, or worried about what the other side is going to share with the jury. Jurors ALWAYS want to know the whole story, so they don’t like it when they feel that you’re trying to hide interesting information from them. When a lawyer objects early and often in trial, the jurors do NOT get the impression that the other side is crossing a line, even if the judge sustains the objections. Having talked with jurors after trials, with shadow jurors during trials, and having overheard actual jurors during trials, believe me—-the jurors usually believe that objections are lawyers’ ways of hiding the whole story and the truth from the jury. As painful as it may be to hold back an objection when the other side says something inappropriate, weigh the benefits of objecting with the risk of making your jurors’ suspicious. Usually their imaginations conjure up much more damaging assumptions than what the other side would have said. In most situations, it may be better to hold your objection and remain calm. Jurors trust you when you appear calm and unfazed by everything the other side says. And if you have to object, as much as judges hate this, explain your objection out loud in terms the jury can understand. Instead of "objection, calls for speculation!" you might say "objection, the witness is guessing, not giving facts!"

Jurors expect the stereotypical, dishonest lawyer to avoid talking about the most glaring weaknesses in their case. Jurors don’t just expect dishonest lawyers to object when it comes up; they also expect you to actively ignore the topic in hopes that the jurors won’t notice. The jurors may be right. Too many lawyers don’t know what to do with the most worrisome issues in their case and become paralyzed in their ability to talk about it to the jury. But unless the other side does you a favor and doesn’t mention the issue, it’s going to come up, and the jurors WILL notice if you avoid it. Even worse, your jurors will get the impression that you’re HIDING the issue from them, even when you’re only ignoring or avoiding it because you can’t figure out what to say about it. Believe it or not, jurors trust you when you talk about your worst issues and make honest admissions that seem to be detrimental to your case. Jurors are always surprised when lawyers openly admit concerns in voir dire, and they find it refreshingly honest. You’d be amazed at how much credibility you build simply by asking the question. And as I’ve said in past jury tips, jurors get the impression that if you’re not worried about talking about a challenging issue, then it must not be that damaging an issue for you. Take great pains to identify the elephant in the room and talk about it, especially if the other side is going to bring it up.
Jurors expect the stereotypical lawyer to be biased and subjective toward their side of the case, which brings up a strange phenomenon. You and I know that subjectivity and advocacy is how the system is SUPPOSED to work, but jurors miss this point. Jurors believe that honest lawyers are objective and honest—-even to their own client’s detriment, perhaps—-and that subjective, biased lawyers are dishonest.

In a recent case I was involved in, we asked jurors if they believed a lawyer representing his or her spouse would be more or less objective than any other lawyer. The judge was incredulous-—"why are you asking such a ridiculous question? Lawyers aren’t supposed to be objective!" But when the jurors returned their questionnaires, their responses told a different story—-some felt that lawyers representing spouses could be "objective," while others believe they couldn’t be trusted if they were "subjective." So your jurors’ trust depends largely on a concept that isn’t part of our system of justice—-impressions of your honesty and objectivity.

When you start your opening statement on the attack, aggressively advocating a position before your jurors have had a chance to make their minds up about what happened, your jurors get the impression that you’re the stereotypical, SUBJECTIVE lawyer. Your jurors don’t really think about the fact that you’ve studied the case for months or years and are ready to make critical judgments. To them, taking a position too early in your opening shows that you jump to conclusions too quickly, that you’ll argue for your client no matter what the evidence shows, and that you’re once again going to force your point-of-view on the jurors instead of letting them make up their own minds.

Jurors trust you when you tell them what happened in your opening statement before you start taking a position and pressuring them with arguments. When you tell the story of what happened objectively and stay off your soap box for the first half of your opening statement, the impression the jurors get is that YOU are being careful about making up your mind and that YOU needed to know the whole story before drawing reasonable conclusions.
Not to give you nightmares, but jurors have many more subtle, unfair reasons and cues to distrust you and shoehorn you into their definition of the cliché, dishonest lawyer—more than I could ever list out and many more that even I can’t imagine.

The point of telling you this isn’t to scare you into a state of paralysis or make you self-conscious, but rather to make you comfortably aware of the things, big and little, that lawyers sometimes do (inadvertently) to offend and alienate jurors. The irony of course is that none of the offending signals you might be sending the jury are fair or logical; they’re all normal, reasonable parts of representing your clients and dealing with the challenges of litigating a jury trial. But no matter how unfair, your jurors’ perceptions and criticisms of you shape how they trust you, your client, and your case, and once you’ve done something seemingly harmless to turn a juror off, you may have lost them (and your case) in the process. So as foolish as it may sound to worry about how you’re dressed, how you talk to the jurors, and the style with which you try your case, everything that matters to the jury should matter to you.

Thursday, January 7, 2010

Surveillance in the Workplace?

A recent case of Hernandez v. Hillsides, Inc. (2009) 47 Cal. 4th 272, 211 P. 3d. addressed just what level of employee surveillance would be permitted in the workplace. The final decision in Hernandez is fairly fact specific, but it does provide some significant guidance on the issue.

In Herenandez, the employer was a center that housed abused children, and installed a surveillance camera in an attempt to find out who had been viewing pornography on a company computer. A surveillance camera was installed in a shared office space of two women (neither of whom was a "suspect" in the investigation) to determine who was improperly accessing the desktop. The employees were not actually recorded and since these employees were not suspects in the investigation, the camera was not active during their working hours. However, they discovered the camera and sued for invasion of privacy.

The trial court granted summary judgment in favor of the employer, but the Court of Appeals reversed that decision, holding that mere placement of camera equipment in the women’s office without their knowledge constituted an invasion of their privacy. The employer appealed to the California Supreme Court, which reversed the Court of Appeals decision and upheld the grant of summary judgment in favor of the employer. [Hernandez v. Hillsides, Inc. (2009) 47 Cal. 4th 272, 211 P.3d 1063]

In the end, the California Supreme Court essentially legitimized the employer's surveillance conduct under the facts of that case. However, in its decision it affirmed that employees DO have a reasonable expectation of privacy in the workplace, while still finding that, in some circumstances, those rights may be limited, taking a backseat to an employer’s “legitimate business interests.” Thus, Hernandez does not give an employer the "green light" to randomly begin covert surveillance of employees. Rather, it provides that in certain limited circumstances such actions can be justified.