A recent decision by the Supreme Court of California gives employees a little more privacy in the workplace, and gives employers another reason to check their written policies for maximum protection.
Hillsides Inc. ran a private facility for abused children. Two employees shared an office and did clerical work using company computers.
The director of the facility learned that one of those computers was being used late at night to access Internet pornography. He didn't suspect either of the employees who shared the office, but he put a small camera in the office to try to catch the late night computer user.
The camera was never used during the business day and never captured images of the two employees. But when they found the little blinking camera and learned that someone could be watching them at any time in their “private” office, they sued the company for invasion of privacy under both common law and the California Constitution.
The trial court threw the case out before trial, but the Court of Appeal reinstated it. It then went to the California Supreme Court, which agreed that just placing a camera in a private office could constitute an invasion of privacy under some circumstances.
An employer may violate the law when it puts a camera in a private office, even if that camera is not used during the business day. The key is the employee's reasonable expectation that the office, and their activities behind closed doors, will be private.
Here, there was no written policy saying that employees were subject to video surveillance and the employer did not warn these employees that a camera was being installed. Even though they knew their computers could be monitored, they did not expect to be watched from another room.
But the right to privacy is not absolute. A court will balance the competing interests of the parties in deciding whether an invasion of privacy is justified under the circumstances.
In this case, the Supreme Court agreed to throw the case out after all. This employer had a legitimate business reason for snooping, to catch someone accessing pornography in a facility that serves children.
The camera was aimed at a keyboard that the employer knew was being used for this purpose. It was run only at night when the non-suspect employees were gone, and they were never caught on camera.
In this case, the court said the invasion was not “a highly offensive and egregious violation of prevailing social norms.” Hence, no employer liability.
On top of that, the court declined to require an employer to use the “least offensive alternative” to accomplish its goals, such as installing NetNanny on the subject computer.
Even though the employer prevailed in this case, the court's ruling emphasizes that employees have privacy rights at work. Employers should be mindful that they may be intruding on an employee's privacy, even by snooping within the company's premises.
Since the key to the first element of such a case is the employee's “reasonable expectation of privacy,” employers should be sure that their written policies are clear, that surveillance and searches of private areas may take place if needed for a legitimate business purpose. Before embarking on any sleuthing, employers should get advice, both technical and legal, on the particular methods they intend to use.
Hillsides Inc. ran a private facility for abused children. Two employees shared an office and did clerical work using company computers.
The director of the facility learned that one of those computers was being used late at night to access Internet pornography. He didn't suspect either of the employees who shared the office, but he put a small camera in the office to try to catch the late night computer user.
The camera was never used during the business day and never captured images of the two employees. But when they found the little blinking camera and learned that someone could be watching them at any time in their “private” office, they sued the company for invasion of privacy under both common law and the California Constitution.
The trial court threw the case out before trial, but the Court of Appeal reinstated it. It then went to the California Supreme Court, which agreed that just placing a camera in a private office could constitute an invasion of privacy under some circumstances.
An employer may violate the law when it puts a camera in a private office, even if that camera is not used during the business day. The key is the employee's reasonable expectation that the office, and their activities behind closed doors, will be private.
Here, there was no written policy saying that employees were subject to video surveillance and the employer did not warn these employees that a camera was being installed. Even though they knew their computers could be monitored, they did not expect to be watched from another room.
But the right to privacy is not absolute. A court will balance the competing interests of the parties in deciding whether an invasion of privacy is justified under the circumstances.
In this case, the Supreme Court agreed to throw the case out after all. This employer had a legitimate business reason for snooping, to catch someone accessing pornography in a facility that serves children.
The camera was aimed at a keyboard that the employer knew was being used for this purpose. It was run only at night when the non-suspect employees were gone, and they were never caught on camera.
In this case, the court said the invasion was not “a highly offensive and egregious violation of prevailing social norms.” Hence, no employer liability.
On top of that, the court declined to require an employer to use the “least offensive alternative” to accomplish its goals, such as installing NetNanny on the subject computer.
Even though the employer prevailed in this case, the court's ruling emphasizes that employees have privacy rights at work. Employers should be mindful that they may be intruding on an employee's privacy, even by snooping within the company's premises.
Since the key to the first element of such a case is the employee's “reasonable expectation of privacy,” employers should be sure that their written policies are clear, that surveillance and searches of private areas may take place if needed for a legitimate business purpose. Before embarking on any sleuthing, employers should get advice, both technical and legal, on the particular methods they intend to use.