Nobody likes Big Brother, and employees are generally not big fans of video surveillance in the workplace. Employee objections aside, however, the law has recognized that employers can have good reasons to monitor the workplace—such as to prevent harassment or bullying, to ensure the security of both employees and company property, and to generally discourage bad behavior. In general, as long as employees are given notice that they’re being videotaped, an employer’s business-related video monitoring of employees in public areas is lawful.

But what about the legality of placing hidden cameras in nonpublic employee offices? A recent California Supreme Court decision reaffirms that employers can monitor workplaces if there’s a legitimate reason and the intrusion into employee privacy is not severe.

Employer’s Surveillance Deemed Reasonable

The facilities manager of Pasadena-based Hillsides Children Center, Inc., a home for neglected and abused children, was dismayed to discover that someone was accessing pornographic materials from an office computer after work hours. Besides the fact that this activity violated company policy, the manager was particularly concerned because the porn-viewer also had access to the children housed in the Hillsides facility. To find out who the culprit was, the manager installed a hidden camera in the office and turned it on only after business hours.

During regular work hours, two employees occupied the office, neither of whom was suspected of accessing the pornographic material. On discovering the hidden camera, the women filed a lawsuit alleging invasion of their privacy, even though neither woman was ever actually videotaped.

Overruling the lower court, the California Supreme Court held that Hillsides had a legitimate interest in discovering the identity of the person looking at pornography after hours on company computers, especially because of the nature of the facility. The court also ruled that because neither of the women was targeted by the surveillance, or was actually subject to the surveillance, there was no significant invasion of privacy. The court noted that under California law, a privacy violation must be “seriously offensive” for there to be a basis for a lawsuit. Hernandez v. Hillsides, Inc., Cal. Supreme Ct., No. S147552, (2009).

Workplace Surveillance Rules

An invasion of privacy occurs when (1) the person making the claim has a reasonable expectation of privacy, and (2) the intrusion complained of is made in a manner that the average person would find highly offensive.

In public areas, such as common office spaces, conference rooms, and open workspaces, employees don’t have a reasonable expectation of privacy because their actions and movements are publicly visible. Employee privacy expectations are further diminished if employees are given notice that they are being watched. In contrast, there is always a reasonable expectation of privacy in restrooms, locker rooms, and other areas where employees change clothes or customarily engage in private activities. Similarly, a general expectation of privacy is reasonable in private offices that can be shielded from public view by closing the office door or lowering window blinds.

In the Hillsides case, the court ruled that the employees had a reasonable expectation of privacy in their shared office, and that had the employer installed the hidden camera merely to monitor the employees in their day-to-day activities—without any additional justification—the employees would have had a valid claim that their privacy was invaded. However, the court noted that the employees’ privacy expectation must be balanced against the employer’s legitimate business interests and viewed in relation to the specific surveillance that took place. In this case, the court found, the employer’s surveillance was conducted in a way that had minimal impact on the employees and was done for very legitimate reasons.

The rule that employers should take away from the Supreme Court’s decision is that although general surveillance of employees in private offices conducted without a specific reason is likely to be unlawful, surveillance intended to discover specific conduct in which the employer has a legitimate interest is reasonable as long as the manner of surveillance is targeted to monitor only that conduct.

Employers Must Use Caution

The court’s decision in this case should not be read to cover other types of electronic monitoring. As with public spaces, employees do not have a privacy expectation with respect to using company computer or e-mail systems if the employer notifies them that their computer use may be monitored. However, employees do have a privacy expectation in their personal e-mails and PDAs, even if the employer provides the equipment. In addition, telephone calls are protected by federal wiretapping laws, and employers should not engage in monitoring employee calls unless both the employee and the person on the other end of the call are given notice that the call is being monitored.

Practice Tip

Unless there is a compelling need to secretly monitor employees, employers should always notify employees of when, where, and how they are being monitored. This can be done by distributing a company policy to each employee, which will not only ensure that employees know they’re being watched but also help deter bad behavior in the workplace.