A California Court of Appeal recently found that an employer’s surreptitiously hiding a motion sensor video camera on a bookshelf in an employee office could constitute a violation of the  right to privacy provided by the California Constitution. 

In Hernandez v. Hillsides, Inc., a residential facility for abused children suspected that someone was accessing pornographic websites from employee computers, including the one in an office shared by two employees. Rather than implementing a password required log-in system for its computers which would have allowed the employer to track who was accessing the sites, the employer hid a motion sensor video camera on the bookshelf in the office without telling the two employees assigned to share the office. The employees discovered the camera when they saw a red light flashing on the bookshelf, and became extremely upset. They sued the employer for invasion of privacy.

The employer argued that it had not invaded the employees’ privacy because the employees had never actually been recorded and, that even if they had, they had no expectation of privacy in the office for the following reasons: (1) a person could climb over a railing outside the office window and peek in; (2) there was a low "doggie door" window which allowed anyone to bend over and peer into the office; (3) at least 11 people had keys to the office; and (4) the presence of surveillance cameras in common areas of the campus and computer monitoring policy indicated that the plaintiffs knew they could be "monitored" at any time. The employer further argued that even if the employees did have an expectation of privacy, the need to catch the person accessing pornographic websites outweighed such privacy rights.

The trial court rejected the employees’ claims for two reasons. First, the court said that the fact that they were not actually recorded negated their claims. Second, the court said that the employer’s interest in catching the person accessing pornography outweighed the employees’ privacy interests. The appellate court disagreed. The appellate court held that the employees did have an expectation that they would not be secretly monitored by hidden camera and that recordation was not required in order to establish a violation of the right to privacy. In determining that the employees had a reasonable expectation of privacy, the court noted that privacy is not "all or nothing." It considered that while the employees did not enjoy complete privacy, it was reasonable for them to expect that images of them in their office with the door closed would not be transmitted to another portion of the building. The court further noted that the employer failed to establish that it needed to engage in this kind of surveillance.

In light of this case, employers should be mindful that while employees’ expectations of privacy in the workplace are limited, and can be further limited by express policies describing the kinds of surveillance and monitoring in which the employer may engage, engaging in surveillance beyond the kinds of surveillance described in such policies may constitute a violation of employees’ rights to privacy. Employers who have not implemented policies explaining that the employer may search all company property and monitor use of employer provided equipment and technology should consider doing so.