Privacy Issues in the Workplace

surreptitiously attend the employee’s wedding to videotape her. The investigator misrepresented himself as an invited guest and videotaped the employee at her wedding and during her honeymoon. The employee filed suit against the investigator, the District, and workers’ compensation insurer alleging, among other things, violations of her constitutional rights to privacy and of Civil Code section 1708.8. The Court of Appeal held that under Government Code section 821.6, public employees are granted immunity for instituting or prosecuting judicial or administrative proceeding within the scope of their employment, even if their conduct is malicious and without probable cause. The investigation was initiated during the worker’s compensation case and was therefore part of judicial and administrative proceedings subject to Section 821.6 immunity. Sanders v. American Broadcasting Companies, Inc. 487 In Sanders v. American Broadcasting Companies, Inc ., the California Supreme Court upheld a damage award against ABC news after one of its reporters went undercover as an employee and videotaped private conversations between co- workers. The video was later shown on ABC and an 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. Ops.Cal. Atty Gen No. 12-110 488 The California Attorney General has issued an opinion that continuous videotaping surveillance of commercial drivers did not constitute a misdemeanor under Labor Code section 1051, when the video file is inspected by a third party who is an agent of the driver’s employer and the videotape surveillance is for the sole benefit of the driver’s employer.

The manner of surveillance and the area under surveillance may also play a role in determining whether a privacy interest is invoked in the workplace. As a result, employers are advised to consult with legal counsel to review their video surveillance procedures and policies in the workplace. In addition, an agency cannot simply install security cameras without providing notice and an opportunity for the relevant employee associations to bargain and negotiate the effects of a decision to install security cameras. 489 This is the case regardless as to whether the cameras are overt or covert and whether the cameras are install in public or private portions of the premises. 490 While there are limitations on what recording an employer can do at the workplace, there are also limitations on what types of recordings an employer can prohibit of employees in a workplace. In the National Labor Relations Board (“NLRB”) decision Whole Foods Market, Inc. 491 , the Board prohibited a private employer from having a “no-recording” rule that

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