Employees May Pursue Lawsuit For Invasion Of Privacy Against Employer Who Secretly Placed Surveillance Equipment In Their Shared Office

The California Court of Appeal recently considered the issue of whether two employees could proceed with a lawsuit against their employer for invading their privacy by placing a video surveillance system in their office without their knowledge. The Court held the lawsuit could go forward, because the surveillance equipment was capable of being activated while the employees were present; the employees had a reasonable expectation of privacy; and there were questions of fact as to whether the employer’s actions were highly offensive or justified. (Hernandez v. Hillsides, Inc. (2006 Daily Journal D.A.R. 12,519, Cal.App. 2 Dist., Sept. 14, 2006))

Facts

Employees, Abigail Hernandez and Maria-Jose Lopez, shared an office at Hillsides Children’s Center, a residential facility for abused children. In response to information that someone was accessing illicit pornographic websites in the early hours of the morning, Hillsides decided to conduct surveillance in areas where the access had occurred. Although Hillsides did not suspect Hernandez and Lopez, Hillsides installed a motion-activated video surveillance system in their shared office without telling them. The system was set up to broadcast images to a television monitor and video recorder in a storage room across the hall. Hillsides’ director admitted to “activating” the system on three occasions, but claimed it was only activated when Hernandez and Lopez were not present. Nevertheless, on a Friday afternoon during their shift, Hernandez and Lopez discovered the system when they noticed a blinking red light on a shelf in their office.

Hernandez and Lopez sued Hillsides, alleging invasion of privacy and intentional infliction of emotional distress. The trial court granted judgment to Hillsides without a trial. Hernandez and Lopez appealed to the California Court of Appeal.

Decision

The claim of invasion of privacy was based on the concept of “intrusion upon seclusion or solitude or private affairs.” This type of invasion of privacy has two main elements: (1) intrusion into a private place, conversation, or matter, and (2) in a manner highly offensive to a reasonable person.

Hillsides claimed Hernandez and Lopez could not prove their case because there was no evidence that Hernandez and Lopez were recorded or viewed by the surveillance equipment as evidenced by the videotape which showed an empty office. The Court said this did not matter because they did not have to show that private information was disclosed to a third party – harm occurs when privacy is invaded in an offensive manner without consent. “[T]he mere placement of the surveillance equipment on the shelf in [Hernandez and Lopez’s] office itself invaded their privacy because it allowed [Hillsides], or anyone with access to the storage room, to ‘activate’ the surveillance system at any time during the day without [their] knowledge, thus at least presenting the possibility of unwanted access to private data about [them].”

The Court rejected Hillsides’ other arguments as well. Although Hernandez and Lopez’s privacy was not absolute because their office could be viewed through a “doggie door” and at least 11 people had keys, Hernandez and Lopez had a reasonable expectation that images of them in their closed office would not be transmitted to another part of the building. The Court also determined that Hernandez and Lopez had raised an issue of fact about whether Hillsides’ intrusion was “highly offensive,” considering Hillsides had placed a motion-activated camera in their private office, left it functioning while they were present, and did not tell them about it so that they could modify their behavior. Lastly, because the offensive websites were only being accessed at night and the camera did not need to be in the office during Hernandez and Lopez’s working hours, the Court rejected Hillsides’ argument that its actions were justified.

As for Hernandez and Lopez’s claim of intentional infliction of emotional distress, the Court determined Hillsides’ conduct was not “extreme and outrageous,” because it did not intend to spy on Hernandez and Lopez and intended the camera to activate only when they were not present.

The Court sent the case back for further proceedings only on the invasion of privacy claim.

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