Picture this scenario: you run a private residential facility for abused children. Late one night, one of your computers is used to access pornographic web-sites and other inappropriate material in violation of several well-publicized workplace policies. After further investigation, you learn that the inappropriate computer usage occurred on several occasions, but was limited to that one computer, which is located in an office shared by two day-shift employees in the administrative building. Several employees have access to the building and could have used the computer on the nights in question. Concerned that the culprit might be a staff member who works with the children, you hatch the perfect plan to catch him or her: place a hidden camera in the office! Of course, you don’t want to publicize its placement. That would defeat the purpose and the guilty party would simply find another computer to use. Besides, you plan to activate the camera only at night, several hours after the day shift has left the facility. The daytime occupants of the office won’t care that it’s there. Genius!
Did we mention that you are operating this facility in California?
The above scenario mirrors the facts of a case brought by, you guessed it, the two day shift employees who brought suit alleging that the placement of the hidden camera in their office without their knowledge or consent violated their right to privacy under both common law and the California Constitution. What? Are you telling me that merely placing a camera in an office, without even recording the occupants during business hours, is unlawful? Fortunately, the California Supreme Court answered that question with a resounding “no” in Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009). However, the case makes clear that whether or not you can surreptitiously videotape depends on the facts and circumstances unique to your workplace, and you must carefully evaluate when, where, why and how you can do so in order to minimize your liability.
For starters, in California, employees have a constitutional right to privacy which creates at least a limited right of action against both private and government entities, which is in addition to other tort actions, like unlawful intrusion. California has a well-developed body of law prescribing the various elements that a plaintiff must prove in order to succeed on an invasion of privacy claim; however, when considering secretly videotaping your employees, these are the big questions you have to ask:
Do employees have a reasonable expectation of privacy in the area that is going to be recorded? Bathrooms, locker rooms or other areas where reasonable persons would agree employees rightfully expect privacy are strictly off-limits. However, hallways or entryways where employees interact with the public and one another and expect that their activities can and will be viewed by others are generally areas where a reasonable person would not have an expectation of privacy.
Do you have a good faith legitimate business reason for secretly videotaping? Harassment, blackmail or prurient curiosity are never valid reasons for secretly recording your employees’ actions. On the other hand, the court found the reason articulated by Hillside in our case above, which was to prevent a rogue employee with access to children in a residential facility from accessing pornographic material at the facility, was a legitimate reason that did not offend societal standards.
Is the taping conducted in a reasonable manner, or is it offensive? Even if secret videotaping is conducted for legitimate business reasons in areas where employees have no reasonable expectation of privacy, the manner in which the recording is conducted could still subject an employer to a breach of privacy claim. For example, if a camera is zoomed in on a female employee’s cleavage while she’s conversing with a customer, or an employees’ back-side as he/she walks down the hallway, what otherwise would have been acceptable becomes arguably offensive and unacceptable.
Workplace Solutions: In the end, whether, when, why, and how to surreptitiously videotape your California employees should be decided on a case by case basis after full review of the factual circumstances. Most videotaping does not need to be secret and disclosing your intention to do so may prevent employees from engaging in behavior that violates your policies.
If you determine videotaping is appropriate, determine whether the purpose of filming can be accomplished with the employees’ knowledge or whether secret taping is required. If notice is appropriate, consent to the taping is recommended, but notice will typically suffice, especially where the cameras are prominently displayed and in common areas. Placement of signs, such as “smile, you’re on camera,” in areas where videotaping is taking place is a common way to provide notice of taping.