Privacy Issues in the Workplace

(1) does the corporation maintain a policy banning personal or other objectional use,

(2) does the company monitor the use of the employee’s computer or e-mail,

(3) do third parties have a right of access to the computer or e-mails, and

(4) did the corporation notify the employee, or was the employee aware, of the use and monitoring pieces? 481

The answer to these questions is “highly fact-specific” and are “largely determined by the particular policy language adopted by the employer.” 482 In applying this test to the facts in In re the Reserve Fund Securities and Derivative Litigation , the court found that: (1) the employer had an e-mail policy that clearly banned personal use the employer’s email system, (2) while the policy stated that the employer will not “routinely monitor e-mail and will take reasonable precautions to protect the privacy of e-mail,” it also “reserve[d] the right to access an employee’s e-mail for a legitimate business reason . . . or in conjunction with an approved investigation”; (3) the policy specifically warned employees that their e-mail communications would be “automatically saved” and are subject to review by the employer and by disclosure to third parties, and (4) the employee admitted he was aware of the employer’s policy. Thus, the court found that the employee had no reasonable expectation of privacy in the e-mails and that the marital privilege did not apply. 483

H. V IDEO S URVEILLANCE OF E MPLOYEES Situations may arise, such as suspected theft or other misconduct, where an employer finds it wants to conduct hidden video surveillance of its employees. However, employers have to balance their desire to conduct hidden surveillance against the employees’ right to privacy.

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.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 154