Disciplinary and Harassment Investigations

ii. Cases Where Not Permitted If management decides to use video surveillance, it should make sure to narrowly tailor the surveillance so that, wherever possible, only the employee under investigation is being filmed. A Court of Appeal decision held that two women could sue their employer, a home for abused children, because management had videotaped their work space in an effort to find out who was using company computers to view pornographic web sites. 101 The Court of Appeal focused on the fact that the two women were not suspects in the investigation and that the employer had not established that the viewing of the pornographic sites constituted a danger to the children. 102 This case is no longer good law because the Supreme Court reversed the Court of Appeal's judgment insofar as it allowed the privacy claim to proceed to trial. The Supreme Court held that although a jury could find that employer intruded upon employees' reasonable privacy expectations, the intrusion was not sufficiently offensive or serious to give rise to liability because “[a]ny actual surveillance was drastically limited in nature and scope.” 103 Nevertheless, before proceeding with secret video surveillance, be sure that you have narrowed it to the extent possible and that you have strong justification for it. Courts have also held that employees have a reasonable expectation of privacy affording them protection from “public disclosure” of their conversations at work. In Sanders v. American Broadcasting Companies, Inc. , 104 the California Supreme Court upheld a damage award against ABC news after one of its reporters posed as an employee and videotaped private conversations between co-workers. The video was later shown on ABC and the employee sued. The Court held that the employee had an expectation that his comments would not be made public, even though the comments were made in a setting in which other employees could hear the comments. c. Electronic Monitoring The advent of new forms of advanced communications technology raises myriad legal questions for public employers. Foremost among these issues is whether employers have the right to access voice and electronic mail messages generated or received by their employees. Employer monitoring of and access to voice and electronic mail present significant employment privacy issues. Given that it would be common for personal and business-related messages to be placed on voice or electronic mail, a host of legal questions arise. These questions commonly come into play when employees are on vacation and an employer is concerned about unanswered voice or electronic mail.

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