Privacy Issues in the Workplace

NOTE: Labor Code Section 435 prohibits an employer from making any audio or video recording of an employee in a restroom, locker room, or other room designated for changing clothes, unless authorized by a court order.

Hernandez v. Hillsides, Inc. 484 In Hernandez v. Hillsides, Inc. the California Supreme Court addressed an employee’s right to privacy in the workplace following an employer’s use of a hidden video surveillance camera in an enclosed office as part of an investigation into possible employee misconduct. In Hernandez the employer operated a residential facility for abused children. The executive director installed a hidden video camera into an enclosed office shared by two employees after learning that someone was accessing pornography sites from one of the computers after hours. The camera was only operational a few nights after regular working hours and neither of the employees was captured on film. The Court concluded that Hillsides was not liable for an invasion of privacy. This case was somewhat unique because Hillsides had an acute interest in preventing individuals from viewing pornography in light of the organization’s goal to provide a wholesome environment for the abused children in its care. The Court pointed out that employers should generally not use such video surveillance in the workplace without providing “adequate notice to persons within camera ranges that their actions may be viewed and taped.” While the Court’s decision does not necessarily mean that employers must provide details of video surveillance methods used in the workplace, an employee should be placed on express notice that such methods may be used. Unlike other notice provisions that are often contained in an Employee Handbook, there is a strong inference from this decision that employers should provide a separate notice and acknowledgment form to employees that video surveillance may be used in the workplace. Employers should require that employees review and sign the separate acknowledgment form to indicate that they are on notice of the potential for video surveillance in the workplace Sacramento County Deputy Sheriff’s Association v. Sacramento County et al. In Sacramento County Deputy Sheriff’s Association v. Sacramento County et al. , the court held that deputy sheriffs working in a jail environment have diminished privacy expectations because of the nature of their employment. 485 In that case, prison officials were investigating the apparent theft of inmates’ cash from the office. Based on those circumstances, the court found that the deputies did not have a reasonable expectation of privacy against being videotaped by hidden cameras in that office. Therefore, warrantless, video-only

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 155