Expectation of Privacy in Employee Offices: Hernandez v. Hillsides, Inc.

On September 2006, the California Second District Appellate Court reversed and remanded a lower court grant of summary judgment in an action brought by employee whose employer installed video camera surveillance equipment unannounced in her office to try to catch employees accessing prohibited pornography on company computers. Abigail Hernandez (plaintiff employee) claimed that the Hillsides Children's Center (employer) placed a video camera in the lockable office which plaintiff shared with another female employee and thus violated her right to privacy. The employer claimed that the camera equipment never actually recorded any footage of employees, and since the employees worked for a facility for abused and neglected children they had a diminished right to privacy. The trial court granted summary judgment for employer.

The appellate court reversed, however, holding that employees were not required to prove that they were recorded or viewed in order to prevail on a cause of action for invasion of privacy. Citing Miller v. National Broadcasting Co, Inc. (1986) 187 Cal.App.3d 1463 , the court held that the tort of invasion of privacy (based on an intrusion upon a secluded place) does not require plaintiffs to prove that private information about them has been published. The extent to which images of the plaintiffs were "captured" or "observed" by the defendants' intrusion may have an impact on the amount of damages the plaintiffs may recover, but it does not impact the defendants' liability for the intrusion.

The court also reversed and held that defendant employer did not establish that plaintiff employees did not have a reasonable expectation of privacy in their office. The court states, "[I]n the workplace, as elsewhere, the reasonableness of a person's expectation of visual and aural privacy depends not only on who might have been able to observe the subject interaction, but on the identity of the claimed intruder and the means of intrusion." While the employees did not enjoy complete privacy in an office with windows and a door with a doggie-flap opening, the court still found reasonable the employees' expectations of not having their images in their office with the door closed transmitted to another part of the building. Thus, though defendant did not peek through the window or in the doggie-flap, he still in effect secretly hid surveillance equipment with the ability to publish employees' images across the building, and as a matter of law, a claim of intrusion cannot fail merely because this event happened in a place lacking "complete" security.

This case highlights the importance of caution on the part of the employer. To avoid costly litigation, please contact our team to assist you in your employment standards and practices.

NOTE: The California Supreme Court has granted a petition to review this case. Pending rulings and influences are not included in this bulletin and may alter information contained therein.