Quirky Question # 116:
I am the owner of a small private company. I was recently alerted by my secretary that various computers around the office, including some in private offices, have been used late at night to access the internet. The late-night use has included accessing pornographic websites from a couple of the offices. I need to discovery who the unauthorized user is, but I cannot afford a security system or security guards. Can I install a hidden video camera in the offices that have been accessed?
Well, that depends on a number of factors. How “private” are these offices? What is the general layout of your workplace? What exactly do you intend to video, and when?
In our answer to Quirky Question #49, we covered the general issue of surreptitious video surveillance to monitor employees. We also covered employee access of pornographic websites in Quirky Question #109. But your question is a little more specific in that it includes private offices and the use of video surveillance to catch the culprit who is accessing pornographic websites late at night.
A case with similar facts recently changed California law governing video surveillance of employees. There, the California Supreme Court reversed the Court of Appeals’ decision in Hernandez v. Hillsides, Inc., No. S147522, 2009 Cal. LEXIS 7804 (August 3, 2009). [Please note that this case was referenced in our answer to Quirky Question #49 and, as a result, the analysis of that case in Question #49 is no longer accurate.]
Previously, a California employee could succeed in a cause of action for invasion of privacy even if he could not establish that he was actually viewed or recorded. Now, however, an employer’s intrusion into an employee’s privacy may be justified, depending on the particular office environment and the nature and scope of the employer’s conduct.
Employee Expectations of Privacy
If you want to install hidden video cameras in the private offices that have been used for late-night Internet access, the first issue you need to consider is the privacy interests of your employees whose offices are involved.
In Hernandez, the Court began by noting that “while privacy expectations may be significantly diminished in the workplace, they are not lacking altogether.” The Court explained that workplace expectations of privacy vary, depending on whether the employee could be overheard or observed by others, the physical layout of the office intruded upon, and the nature of the activities commonly performed in such offices. At one end of this spectrum are offices in which work or business is conducted in open areas, in plain sight of supervisors, customers, and visitors. On the other end of the spectrum are areas in the workplace that are subject to limited view and hearing, restricted access and closed doors or blinds.
Your question says that the offices at your company are “private.” Without more details about your workplace layout, I can only advise you that employees in private offices which are separate or enclosed from other work areas have a heightened expectation of privacy. Given the extremely intrusive nature of hidden video cameras, even some employees who share offices but work in relative seclusion have an expectation to be free from secret filming by their employer. Under circumstances nearly identical to yours, the Court in Hernandez found that the employer intruded on the employees’ zone of privacy because the employer used the highly invasive method of video surveillance where plaintiffs had a heightened expectation of privacy in a relatively secluded office.
In its decision, the California Supreme Court also suggested that an employer who wishes to install surveillance equipment inside employee offices should provide notice to its employees that they will be subjected to the risk of such surveillance Employers who obtain consent to the possibility of intrusion can reduce the employee’s reasonable expectations of privacy because the employees have been put on notice of potential surveillance.
Offensiveness of the Intrusion
An employer may be able to justify an intrusion into employee privacy expectations if the surveillance is for a legitimate business purpose and limited in scope. The second element to a claim for invasion of privacy requires that the intrusion must be “highly offensive” to a reasonable person and an “egregious breach of the social norms.” To determine whether an intrusion falls into these categories, courts look at the place, time and scope of the employer’s video surveillance efforts, as well as the employer’s motives and justifications.
In the Hernandez case, the employer was careful in choosing the location of the video camera. The company first tried to videotape the culprit from an open workplace area but, due to high traffic, needed to find a more secluded area in which the unauthorized computer use occurred. In the plaintiff’s office, the employer focused the camera only on the specific computer workstation in question. He was also certain to limit the scope of the surveillance to a time only after the plaintiffs’ shifts ended and they had left the facility for the night. He never activated the system during regular business hours when the plaintiffs were present, and plaintiffs were never secretly viewed or taped. Finally, the employer’s purpose was legitimate: to determine who had been viewing pornographic websites at the nonprofit residential facility for neglected and abused children. Thus, even though the employer invaded the employees’ expectations of privacy, its actions were justified because they were narrowly tailored and served a legitimate purpose.
Tips for California Employers
1. Understand that employees have a reasonable expectation of privacy in the workplace and that expectation is heightened in secluded offices where an employee does not expect to be overheard or observed by others. There is a broad spectrum of employee privacy rights in the workplace, depending on whether the workplace is open to the public, the employee works in an open area or an office with a door that closes or locks, or an employee shares offices.
2. Provide employees with formal notice that they are subject to surveillance. Any monitoring practices or policies should be carefully followed in order to decrease or eliminate a reasonable expectation of privacy.
3. Monitor employees in the least intrusive manner possible, considering the place, time and scope of surveillance. Also, be certain that you have a legitimate purpose to conduct the surveillance.