Plaintiffs Hernandez and Lopez were employed by Hillsides Children Center, Inc., which provided services to children with special needs and who were abused. Hillsides discovered that someone was accessing pornographic websites on a computer located in the Plaintiffs’ office late in the evening. 

The employer, citing its mission to protect abused children and to protect itself from any legal liability, installed a video camera in Plaintiffs’ office to identify the perpetrator. Because the websites were only being access at night, the video camera did not record any of Plaintiffs’ activities during the day, and was only turned on at night. The perpetrator was not caught.  But Plaintiffs’ discovered the video camera in the office, and filed this lawsuit for violation of their privacy rights.

The California Supreme Court noted that to succeed on their privacy claims, Plaintiffs would need to prove that:

  1. The plaintiff must possess a legally protected privacy interest,
  2. The plaintiff’s expectations of privacy must be reasonable, and
  3. The plaintiff must show that the intrusion is so serious in nature, scope, and actual or potential impact as to constitute an egregious breach of social norms.

The Court noted that Plaintiffs were able to establish violation of the first two elements in this case– that the employer intentionally intruded into the Plaintiffs’ office in which they had a reasonable expectation of privacy.

Offensiveness of the employer’s action

However, the Court held that Plaintiffs did not meet their burden of proof for the third element. First, the Court held that the degree and setting of the intrusion into Plaintiffs’ privacy was not very high. The Court noted that the “place, time, and scope” of defendant’s surveillance was not highly offensive. Second, the Court looked at the employers motive and justifications for conducting the surveillance – which had no element of being improper in this case. Given nature Hillsides’ business of helping abused children, it was taking proper action to prevent any possible harm to them. Given these factors, the Court found that the Plaintiffs could not, as a matter of law, prove that a reasonable person would find the intrusion into their privacy offensive.

Take away for employers

  • Do not assume that you have the right to monitor employees during working hours. As the case establishes, employees still have reasonable expectations of privacy at work.
  • Do not assume a computer monitoring policy applies to video and audio surveillance. The employer in this case tried to argue that the computer monitoring policy diminished Plaintiffs’ expectation of privacy at work, but the Court disagreed because the policy never mentioned the possibility that employees could be videotaped at work.

The case, Hernandez v. Hillsides, Inc. can be read here (PDF).