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.

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