In Hernandez v. Hillsides, Inc., S147552 (Aug. 3, 2009), the California Supreme Court unanimously held that the mere placement of a hidden video camera in an employee’s office could constitute an invasion of privacy, even if the camera was never actually used to record the employee. Under the specific facts of the case, however, the Court ultimately found no liability because the intrusion was relatively minor, limited and justified, but California employers should be aware that the use of hidden surveillance cameras without notice or warning in “semi-private” office space is likely to produce an actionable claim for invasion of privacy in many cases.
In Hernandez, the employer, a residential facility for abused and neglected children, installed a hidden video camera in an office from which it believed someone was accessing pornographic websites after hours. The two clerical employees who worked in the office during the day were never told about the camera nor did they consent to its use, but the camera was only activated three times over a three-week period, and the employees themselves were never actually recorded. When they discovered the camera, “small, blinking, and hot to the touch,” the employees brought claims under the California Constitution and the common law tort of intrusion for invasion of privacy. This tort has two elements: first, the plaintiff must prove an intentional intrusion into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy, and second, the intrusion must occur in a manner highly offensive to a reasonable person.
The trial court sided with the employer, granting summary judgment on the grounds that the employees had not been harmed because there was no evidence the camera had ever actually recorded them. The trial court also agreed with the employer that whatever expectation of privacy the employees had was outweighed by the employer’s duty to protect the children living in the residence. The Court of Appeal reversed, however, holding that the employees’ claim for invasion of privacy did not require them to prove they had actually been viewed or recorded. It held that “the mere placement of the surveillance equipment on the shelf in plaintiffs’ office itself invaded their privacy” because it could have been activated at any time, including while the employees were present. The court also found a triable issue of fact as to whether the employer’s intrusion in this case was justified. Hernandez v. Hillsides, Inc., 142 Cal. App. 4th 1377 (2006).
The California Supreme Court’s Decision
Reversing the Court of Appeal, the California Supreme Court held that the employees had a reasonable expectation of privacy in their semi-private office, and that an intrusion into their privacy had occurred, but the employer’s conduct did not violate their privacy rights in this instance. The Court found that the employees had a reasonable expectation they would not be secretly videotaped in their office because employees generally have this expectation in nonpublic work areas unless the employer puts them on notice to the contrary, and there was no evidence the employees had notice in this case. The Court also held that it did not matter that the plaintiffs were never actually recorded on video, or that the employer took steps to avoid recording them during business hours. The Court held that such factors could mitigate the offensiveness of the challenged conduct, but did not preclude a finding of the requisite intrusion in the first place.
Although it found the hidden camera constituted an intrusion, the Court held that actual use of the camera was not so serious, egregious or offensive as to warrant liability. The evidence showed that the employer never activated the camera during regular business hours, and only recorded video on three occasions, at night, over a three week period. Thus, the Court found that the plaintiffs’ privacy concerns were alleviated because “the intrusion was ‘limited’ and no information about plaintiffs was accessed, gathered, or disclosed,” and such timing and limited use of the camera was “inconsistent with an egregious breach of social norms.” The Court also gave significance to the employer’s motives, which were not to record the plaintiffs for any “socially repugnant” reasons, but rather “to confirm a strong suspicion…that an unknown staff person was engaged in unauthorized and inappropriate computer use at night,” which undermined the employer’s goal of providing “a wholesome environment for the abused children in its care.” Accordingly, the Court found that “considering all the relevant circumstances,” the plaintiffs had not and reasonably could not establish that the employer’s conduct was “highly offensive and constituted an egregious violation of prevailing social norms.”
Implications for Employers
Employers should consider this a “near miss” ruling that was largely driven by the unique facts of the case, including the employer’s very limited use of the camera and its particularly compelling justification given its role as a caretaker for sexually abused children. In many other circumstances, however, video surveillance of employees in a non-public work area without notice to those potentially recorded is likely to product an actionable claim for invasion of privacy. Employers contemplating the use of such covert video surveillance should seek advice of counsel.