Finding the Facts - Disciplinary and Harassment Investigation

Thus, where prison officials were investigating apparent theft of inmates’ cash from the office, deputies did not have a reasonable expectation of privacy against being videotaped by hidden cameras in that office. Therefore, warrantless, video-only surveillance did not constitute unlawful search and seizure, invasion of privacy, or tortious intrusion into the deputies’ privacy. Kazensky v. City of Merced 122 Another example of secret videotaping being used as a basis for imposing discipline. In Kazensky , a city installed a hidden video surveillance camera at a city shop where vehicles are repaired. The city was attempting to discover a possible cause of recurring vandalism. Although the camera did not reveal the vandalism culprit, it did reveal that two city employees were taking grossly excessive breaks and engaging in other acts of misconduct. As a result, the video tape evidence was used to justify the termination of the employees.

At an administrative hearing, remember to properly authenticate and lay a foundation for any video surveillance evidence you are planning to introduce. Otherwise, the evidence may be excluded. 123

LCW Practice Advisor

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. 124 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. 125 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.” 126 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. , 127 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.

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