California Supreme Court Clarifies Standards for Workplace Video Surveillance

Can you believe the court found on behalf of two employees who brought an action for invasion of privacy and the cameras was never turned on while they were at work!

 The facts of the case were very interesting. The employer operated a nonprofit residential facility for abused and neglected children, including two who had been victims sexual abuse. The employer found out that the computers were being used at night to access child pornography websites and were concerned that it might be an employee who worked with the children.  The director of the facility decided to install a secret video camera to try to identify the culprit. It’s important to note that the Director did not suspect either one if the plaintiff but did not tell them to protect the integrity of the investigation.

 The camera was placed in a bookcase in the office shared by the plaintiffs and although it was plugged in, it was never turned on during the day when the plaintiffs were present. One day the plaintiffs saw the red motion detector light come on and did a hard target search to find out what the light was for. They discovered the camera and discussed the matter with the Director. The Director explained to them why the camera had been installed and even showed them the film footage which confirmed that they had never been recorded. The plaintiffs were not convinced and sued for invasion of privacy based upon the argument that they had a reasonable expectation of privacy within the confines of their office, intentional infliction of emotional distress and negligent infliction of emotional distress. The lower court dismissed the case, and the appeals court disagreed, and decided that the case should be heard on the merits. The defendant appealed that decision to the California Supreme Court who agreed to hear the case. 

 After hearing the entire case the high court decided that the employer had intruded into an area where the plaintiffs had a reasonable expectation of privacy but that the facts of the case prevented this intrusion from rising to the level of an actionable privilege violation.

 In reaching this conclusion, the Court explained that employees may have a reasonable expectation of privacy in a non-public area like an office, even if others have access to it. The Court noted that the plaintiffs had not been informed of the placement of the video camera which could have reduced the expectation of privacy. They also explained that the employer did everything to minimize the invasion such as the narrow confinement of the video camera, the short window of time that the camera would be activated, and the defendants’ compelling reason for installing the equipment.

Here’s how an employer can minimize their exposure:

1. Notify employees and others in the workplace about areas under surveillance;

2. Avoid the placement of video surveillance cameras in locations where such

    equipment is a clear violation of the law (e.g. restrooms, locker rooms, etc.);

3. Watch installing cameras in non-public areas such as private offices;

4. Audio surveillance is subject to a different, and often, greater standards;

 As always if you have any questions please give us a call!