Video Monitoring of Employees at the Workplace

Surveillance technology continues to collide with employees' privacy interests. Telephone monitoring and recording, email and web use monitoring, GPS tracking, and video camera surveillance all present potential employment law problems. The law is struggling to keep up, and employers must be careful to anticipate how courts will react to new technology.

The newest California decision is Hernandez v. Hillsides, Inc. An employer set up a motion-activated video camera in an office to determine who was accessing a computer at night to view porn. The manager who installed the camera disconnected it each day and re-connected it only at night. Two employees who used the office during the day discovered the camera one day when it had not been disconnected. They sued for invasion of privacy.

The employer argued the camera was not even activated during the day (except for the one day it was mistakenly left on). But the California Court of Appeal held "a plaintiff need not establish that he or she was actually viewed or recorded in order to succeed on a cause of action for invasion of privacy." Employers can monitor employees' work areas by ensuring the employees do not have an "expectation of privacy." The way to do this is by giving notice of the monitoring. Notice may take away the element of surprise, but it also deters the conduct sought to be monitored.

Unintended consequences department: What effect will this decision would have on "nanny cams?" A nanny or babysitter is an employee. The workplace is the parents' home. Under this decision, a nanny may be able to argue a privacy invasion if the parents set up hidden cameras. However, the court pointed out that the employer failed to establish a sufficient justification for the monitoring, nor did the employer sufficiently establish the employees had a diminished expectation of privacy. Perhaps homeowners may argue that nannies do not have privacy expectations while working in a private home. Stay tuned (so to speak).

DGV