The California Supreme Court addressed the issue of whether an employer could install surveillance cameras, in an office shared by 2 employees, to catch whoever was accessing pornographic sites at night.

The 2 employees, who weren’t suspects, worked during the day and were not told about the camera as it was feared that they would gossip about it.

The camera was only activated at night.  They discovered the camera and sued for invasion of privacy, arguing that the camera itself invaded their privacy and that they had a reasonable expectation of privacy.

The court found that an employee’s privacy expectations depend on the circumstances.  They are different if one works in an open area rather than in an office.

The court determined that the employees did have a reasonable expectation of privacy, that video cameras are particularly problematic and that the fact that no notice was given was troubling.

However, the court reasoned, this intrusion into privacy was justified for business reasons.

Additionally it was very restricted, with cameras activated after hours, pointed only at the work station, used for a short period of time, and with the knowledge of only a few people.  Given that the employer operated a residential facility for abused and neglected children also weighed on the court’s decision. [Hernandez v. Hillsides]

This case provides some good reminders for employers including:

• Privacy law is complicated and evolving.  Contact an attorney before you start taping or monitoring employees.

• Employees do have expectations of privacy, although, in some instances they can be limited.
• The best practice is to notify employees of any surveillance.  Requiring a signed acknowledgement isn’t a bad idea either. Such a document reduces or negates an employee’s privacy expectations.
• Employers should use the least invasive type of monitoring possible.
• Sound business justification is necessary.

Develop some solid policies before undertaking any surveillance.