Employees' Rights To Privacy at Work

April 1, 2010
By: FitzGerald & Mulé LLP

Do your employees have a complete right to privacy within your workplace? Or do you, as the business owner, have the right to monitor everything that goes on in your place of business? The answers might surprise you.

In August 2009, the California Supreme Court handed down its ruling in Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009), a hotly contested case involving the employer's video surveillance of two female employees in the workplace, without their knowledge. Both women worked in a cubicle of the office, secluded from other employees. Their employer was a non-profit organization with the purpose of protecting high risk youth, including some children who had been the victims of sexual abuse. The employer received credible information that pornographic websites were viewed on one of the two female employees' computers located in the cubicle, after work hours. Based upon this information, the employer erected a video camera over the cubicle, with motion sensors, and only turned the power on to the camera after work hours in the evening. The camera was disabled during work hours. Id. at 280-83.

The two employees learned of the surveillance and filed a lawsuit, claiming invasion of their privacy as well as negligent and intentional infliction of emotional distress. One employee had lifted her shirt on occasion to show the other female scarring on her body, and both employees had occasionally changed clothes in the cubicle before leaving work and proceeding to get exercise at a gym. There was no evidence that this activity had been taped. Id. at 283-84.

The trial court ruled in the employer's favor on summary judgment. However, the Court of Appeals determined there were triable issues of facts as to whether the plaintiffs' (employees') right to privacy was violated by the employer's use of surveillance without notice to the employees. Id. at 284-85.

The California Supreme Court concluded that, while a jury could find that the employer intruded upon employees' reasonable privacy expectations, the intrusion was not sufficiently "offensive or serious" to give rise to liability. The decision noted that, on these facts, "any actual surveillance was drastically limited in nature and scope," so that the employer could reasonably determine whether an employee was violating policies without putting the "culprit" on notice. Also, unlike previous cases in this area, the employer in Hernandez was not required to prove that there were no "less intrusive means" of accomplishing its legitimate objective, i.e., of discovering who was using an office computer late at night to view pornography. Id. at 298-300.

The U.S. Ninth Circuit Court of Appeals came to a similar result in 2007 in United States v. Ziegler, 474 F.3d 1184 (9th Cir. 2007). 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. Id. at 1192.

The Court of Appeals recognized that an employee does have an "objectively reasonable" expectation of privacy in his locked, non-shared office space and the work place computer located in that space. However, the Ziegler Court also held that the employer had a right to search that computer, through a firewall that permitted constant monitoring. The Court explained that, under these facts, the computer equipment was "the type of workplace property that remains within the control of the employer even if the employee has placed personal items in it." Id. at 1191.

These cases point to the need for clear, strong policies that permit an employer to protect their workplace from inappropriate or unlawful conduct by reserving right to its own property and surveillance. For more information about what policies your business should have in place about the use of company property and the limits on employees ' rights to privacy, contact FitzGerald & Mulé LLP.

This article is intended for informational purposes only. Nothing herein should be construed to constitute legal advice. It is recommended that you seek legal counsel before making decisions regarding labor and employment matters.

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