UWB Computing Technology and Public Policy

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Court Case - Employee Video Surveillance

More and more employees use video surveillance in workplaces these days. Employees use surveillance to curtail illegal activities by employees. However, employees may bring action against their employers for video surveillance under federal and state laws. Understanding these protections and how they apply to video surveillance monitoring in the workplace can help employees keep their privacy intact and employer to keep a check on illegal activities at workplace. There are many past and current cases in Supreme Courts reading such dispute. One of the important case regarding the same issue is Hernandez v. Hillsides Inc., 47 Cal. 4th 272 (2009)No.S147552 a California court case concerning extend to which employer may conduct video surveillance of the employees without violation their privacy rights.

Facts and Background

Hillsides was established in 1913, and later become residential treatment center for children, ranging age of 6 to 18.The organization has many employees who work sometimes work at night too. In July 2002 Hillside’s computer specialized found out that two of the Hillsides computers were used for accessing pornography at night. Hillside’s director John Hitchcock got concerned not only because porn viewing is violating Hillsides computer policy but also because many of the facility’s resident were children who themselves had been exposed to or forced to do pornography. Hence he placed a video camera in office hoping to identify the person doing this. The camera was connected to monitor and recorder in another room. As the motive was to identify the culprit no other member in office were informed about the cameras.
After failing, to identify the perpetrator by installing a concealed camera in the computer lab, In October 2002 Hitchcock concealed a video camera and motion detector in the plaintiffs' shared office, pointing the camera at the computer that had been used to access pornography as he plaintiffs' office had a door that could be locked and exterior windows with blinds. Several coworkers had a key to the door. The door had a "doggie door," without a flap, through which an observer could peek into the office. Hitchcock strictly limited information about his investigation. Hitchcock, Foster and two administrators knew that the video camera had been installed in the plaintiffs' office. At approximately 4:30 in the afternoon on Friday, October 25, 2002, discovered the camera secretly placed in his office. Plaintiffs were extremely upset by the discovery and asked Hitchcock to view the surveillance tape. Plaintiffs were shown a tape containing scenes of their empty office, Hitchcock also mention that they had been planning to remove the camera the very weekend plaintiffs found it, because there had been no pornographic websites accessed from the computer in plaintiffs’ office. The plaintiffs rejected Hitchcock's explanations and apologies after they confronted him about the surveillance and on September 12, 2003 Hernandez the plaintiffs sued Hillsides the defendants for invasion of privacy and intentional and negligent infliction of emotional distress against. [I][II]

Existing Law
In California, an employee can claim for an invasion of privacy based on two distinct but parallel theories. The first is based on the state constitution, which includes The Right to Privacy which was added to the California Constitutionby initiative in 1972.[VII] The second is the common law invasionof privacy tort claim. In Hernandez, the plaintiffs asserted both causes of action both these claims have many common requirements. To prove a claim based on the constitutional privacy right, the plaintiff must show that: 1) the plaintiff had a privacy interest protected by law; 2) the plaintiff had a reasonable expectation of privacy under the circumstances; and 3) the defendant’s conduct constituted a serious invasion of the privacy right. The seriousness of an invasion of privacy is also assessed according to social norms: the invasion must be “an egregious breach” of the norms that underlie the particular privacy right. If the plaintiff successfully makes this three-part showing, the defendant still may be able to show the intrusion was justified.
The comparable common law claim for invasion of privacy requires an intentional intrusion into a private place or into private affairs, in a manner that would be highly offensive to a reasonable person. Social norms determine whether a privacy interest existed in a particular case.[III]

Court Trials and Decision

The case began at Los Angeles County Superior Court; based on all facts, the court found no issue as to any cause of action stated in the complaint, and granted summary judgment in defendants' favor, and dismissed the action. The court emphasized the lack of evidence that plaintiffs "were secretly observed or recorded by way of a hidden camera located in their office.” On March 1, 2006 Judge C. Edward Simpson dismissed granted defendants' motion for summary judgment and dismissed the case.But L.A.'s 2nd District Court of Appeal reversed in 2006, saying that plaintiffs had a reasonable expectation to be free from this kind of intrusion in the workplace, notwithstanding evidence that they were never viewed or recorded and that they worked in a shared office to which others had access. Court of Appeal concluded that defendants' conduct was highly offensive but the Court of Appeal also agreed with the trial court that plaintiffs had not presented strong claims for intentional and negligent infliction of emotional distress.Reversing the court of appeal, the California Supreme Court ruled that the trial court had properly granted summary judgment in Hillsides' favor on the plaintiffs' claims for invasion of privacy. To begin with, the court found that both employees had a reasonable expectation of privacy in their office even though (a) the office was shared, (b) several co-workers and supervisors had a key to the office, and (c) a “doggy door” at the bottom of the office door had no flap to prevent peeking into the office. despite its finding concerning the private nature of the office, the court held that the employees had no claim because the employer did not act in a manner that would be considered “highly offensive to a reasonable person,” the second essential element of a privacy claim. The court based that conclusion on the following key findings:• Hillsides had a legitimate business reason for installing the video camera;• The camera was activated only at night, when the perpetrator might be present;• The surveillance was directed only at the computer that had been used for unauthorized viewing of pornography;• The surveillance was disclosed only to four individuals; and• The video equipment was locked in a storage closet with limited access. [IV]

Effects of Hernandez v Hillsides case on Standards for Workplace Video Surveillance in California
California Supreme Court's decision in Hernandez v. Hillsides, Inc. had a significant impact on video surveillance signage in the workplace. The court ruled that while privacy expectations inside a workplace may be diminished, they are not absent. Employees must be notified what is being monitored and why. Signage is required to protect the company from being sued under the Privacy Act.Although the Court’s prior cases support the holding that employees have a reasonable expectation of privacy in parts of the workplace, the Court made clear that this is not enough to state a claim. Rather, California’s courts must analyze the specific circumstances—including the reasons given by the defendant for its behavior—in deciding whether a claim will lie. Where a defendant has a legitimate reason for its behavior, and where its actions are limited in scope and carefully tailored to address the specific situation at issue, a plaintiff’s claims should be rejected.The case was also heighten in many law article as it raise a big questions like Do your employees have a complete right to privacy within your workplace? Or do you, as a business owner have the right to monitor everything that goes on in your place of business. After this case the U.S Ninth Circuit Court of Appeals gave similar decision in 2007 in United States v. Ziegler. In that case, a male employee was convicted of accessing child pornography on the Internet, when his employer found evidence of his access on office computers and reported the employee to the authorities. The employer had notified its employees that the computers on the premises were company-owned, were regularly monitored, and were not to be used for personal activities.The California Supreme Court Provided Useful Guidance for Employers Engaging in Video Surveillance and Other Workplace Searches after giving the ruling on the long waited Hernandez v. Hillsides case. Some of the important points in the guideline are as follows:

Notifying employees and others in the workplace about areas under video surveillance, in order to reduce any expectation of privacy;
Avoiding the placement of video cameras in locations where video surveillance is prohibited by law (e.g., restrooms, locker rooms, or rooms designated for the changing of clothes);
Exercising particular caution when installing video cameras in non-public areas of the workplace, such as offices, and consulting with legal counsel;
Remembering that audio surveillance is subject to different and often greater restrictions than video surveillance, including laws prohibiting the use of electronic amplifying or recording devices to eavesdrop or record a confidential communication.
Recognizing that the laws governing video surveillance vary significantly by jurisdiction. In many countries, employees have greater privacy rights in the workplace, and local laws must be considered prior to implementing any workplace video surveillance program. [V]

Hernandez v Hillsides Citation

Hernandez v. Hillsides case was citted in many cases some which are Openiano v. Bank of America, AMIT MAHAJAN v. SANGEETA KUMAR, et al, Senger v. Academy of Art University

The Hernandez v. Hillsides and many other similar cases suggest that employees have a complete right of privacy at work place but under certain circumstances even if the employer does intrude upon an employee's privacy in the course of a workplace search or investigation, the employer generally will not be subject to liability as long as the search is legitimate, narrowly tailored and tightly controlled. The cases also suggest that employers should not do any unethical Intrusion of employee’s privacy rights for his own profit or business.

See Also:
Vega-Rodriguez v. Puerto Rico Telephone Co Nelson v. Salem State College
James v. Newspaper Agency Corp
http://www.rc.com/documents/article.pdf
- An Employer’s Guide to Hidden Cameras in the Workplace

References:

I.Hernandez v. Hillsides Inc., 142 Cal. App. 4th 1377, 1389 (2006).

http://scholar.google.com/scholar_case?case=8205896337467505443&q=Hernandez+v.+Hillsides&hl=en&as_sdt=200

II.Hernandez v. Hillsides Inc., S147552 (August 3, 2009)
http://privacyblog.littler.com/uploads/file/Hernandez%20(2).pdf