Hernandez v. Hillsides: Narrowing workplace privacy in California

INTRODUCTION

The California Supreme Court confirmed that employees have a reasonable expectation of privacy in the workplace, but held that in some circumstances, those rights may be limited, taking a backseat to an employer's "legitimate business interests." In Hernandez v. Hillsides, 47 Cal. 4th 272, 211 P.3d 1063 (Cal. 2009), the Court confirmed a grant of summary judgment to an employer who conducted hidden, off-hours video surveillance in its employees' semi-private office in an effort to prevent potential harm to its minor clients. The specific facts of the case drove the result, but the ultimate point is clear - employees do not have an absolute guarantee of privacy behind every closed door in a workplace.

BACKGROUND

The executive director of Pasadena's Hillsides Children's Center, a facility that houses abused children, discovered that someone had been viewing pornography on employee Maria Lopez' computer in the wee hours of the morning. This caused particular concern, as many of the 66 boys and girls in residence at the center had been the victims of physical, emotional, and sexual abuse, and a person viewing pornography late at night could potentially pose a danger to the children.

In an attempt to catch the perpetrator, the executive director installed hidden video surveillance equipment in the office shared by office director Abigail Hernandez and administrative assistant Lopez without informing Hernandez and Lopez of the camera. Neither Hernandez nor Lopez were suspects, and the camera was only activated after work hours - neither Hernandez nor Lopez were ever recorded. Nevertheless, when the two women discovered the camera, they were distraught and sued Hillsides for invasion of their privacy.

Los Angeles County Superior Court Judge C. Edward Simpson granted summary judgment in favor of Hillsides, but Los Angeles' 2nd District Court of Appeals reversed that decision, holding that mere placement of camera equipment in the women's office without their knowledge constituted an invasion of their privacy. Hillsides appealed to the California Supreme Court, which reversed the Court of Appeals decision and upheld the grant of summary judgment. Hernandez v. Hillsides, 47 Cal. 4th 272, 211 P.3d 1063 (Cal. 2009).

There is a limit to the expectation of privacy in the workplace

California law on workplace privacy is well established at its extremes -- courts have allowed covert videotaping in open and accessible workplace areas while prohibiting videotaping in areas reserved for personal acts like restrooms and dressing areas. The facts presented in Hernandez, however, present the area in between those two extremes.

The Hernandez plaintiffs claimed invasion of their right of privacy as established under both the California Constitution and common law. To prove a claim based on the California constitutional privacy right, a plaintiff must show that 1) he had a legally protected privacy interest; 2) he had a reasonable expectation of privacy; and 3) the defendant's conduct constituted a serious invasion of the privacy right. 47 Cal. 4th at 287. Under the common law tort claim for invasion of privacy, a plaintiff must establish an intentional intrusion into a private place or into private affairs in a manner that would highly offensive to a reasonable person. Id. at 286.

Under both the constitutional and common law claims, the measure of both the expectation of privacy and seriousness or offensiveness of the invasion is based on social norms and facts of the specific case. Moreover, in analyzing both claims, the court performs a balancing test, weighing the intrusion against the defendant's justifications and countervailing interests to determine whether the privacy violation is actionable. Id. at 287-288.

The Hernandez court acknowledged the largely parallel elements of the two privacy actions, finding that both claims have basically two elements: "(1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests." Id. at 288.

The Court agreed with the Court of Appeal's determination that a jury could find that Hillsides intruded on the plaintiffs' privacy. The Court acknowledged that employees do have some expectation of privacy in a shared or solo office, writing that the plaintiffs "had a reasonable expectation under widely held social norms that their employer would not install video equipment capable of monitoring and recording their activities - person and work-related - behind closed doors without their knowledge or consent." Id. at 277.

However, the Court disagreed with the Court of Appeals on the second element of the privacy claims, finding that the intrusion was not highly offensive or sufficiently serious to constitute an actionable invasion of privacy. Id. at 295. To reach this conclusion, the Court focused on the specific facts of the case, including the limited scope of the surveillance, the business interest of the employer, and more. "Activation of the surveillance system was narrowly tailored in place, time, and scope, and was prompted by legitimate business concerns, " wrote the Court. "Plaintiffs were not at risk of being monitored or recorded during regular work hours and were never actually caught on camera or videotape." Id. at 301. Balancing the nature of the intrusion against the employer's justification, the Court found in favor of the employer in this case.

The plaintiffs argued that employer could have employed less intrusive alternative means, but the Court made it clear that while employers should consider alternatives, it need not always take the least offensive alternative if it would be less effective in meeting the employer's goals. Id. at 300.

CONCLUSION

At first glance, Hernandez may appear to chip away at employees' right of privacy in the workplace, as employees have traditionally enjoyed a heightened expectation of privacy in private or semi-private offices compared to open, more public workplace areas. However, it's clear that the Hernandez result largely hinged on the specific facts - the plaintiffs were never actually recorded, were not the target of the recording, and the employer had a specific and potential serious business interest to protect. When it comes down to it, the Hernandez plaintiffs may have made a mountain out of a molehill.

Nevertheless, the case cost the defendants in legal fees and resources, so employers should take lessons from Hernandez that could save them such litigation costs. First, employers should make privacy policies very clear to employees through ample notice and consistent application and enforcement. If employees are told that they should have no expectation of privacy in their office, then they cannot successfully claim a breach of a privacy right. Second, when workplace situations arise that may warrant surveillance, employers should take the time to consider alternatives and document the decision-making process that lead to the choice of surveillance over other choices.

Finally, employers should not see Hernandez as a free pass to videotape employees. There are clear statutory provisions in California completely prohibiting certain forms of invasion of privacy. More importantly, there are cases where the balancing test might tip the other way, finding that the employer's justification does not outweigh the seriousness or nature of the invasion. Employers considering implementation of a surveillance system should contact an experienced employment attorney for advice on the scope and use of the intended system.

Mr. Gray is a partner of Zuber & Taillieu LLP, where he specializes in employment law. He earned a J.D. from Loyola Law School, where he graduated second in his class, and was Chief Note and Comment Editor of the Law Review.

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