Aug. 2, 2009 California Supreme Court Finds That Limited Employer Surveillance Does Not Violate Employees’ Privacy Rights


Today, the California Supreme Court ruled in Hernandez v. Hillsides, Inc. that an employer's covert but limited videotaping of a semi-private office after hours did not violate the employees' common law or constitutional privacy rights. Although the Court found that the employees had a reasonable expectation of privacy in their workplace, the Court held that the employer's conduct — which was "drastically limited" in nature and scope — was not highly offensive or sufficiently serious to constitute a privacy violation.


Defendants Hillsides, Inc. and Hillsides Children Center ("Hillsides") operated a non-profit residential treatment center for children who had been victims of emotional, physical, and sexual abuse. Plaintiffs Hernandez and Lopez performed clerical work for Hillsides during daytime business hours and shared an enclosed office.

In July 2002, Hillsides' computer specialist learned that several pornographic websites had been accessed in the late-night and early morning hours from at least two different computers, one of which was located in the plaintiffs' office. Access to these websites violated Hillsides' "E-Mail, Voicemail and Computer Systems Policy," which prohibited accessing sexually explicit material and warned employees that they had no expectation of privacy in the use of Hillsides' computers, networks, or systems.

Without informing the plaintiffs, Hillsides installed hidden video equipment in their office to determine the culprit's identity. The devices were disabled during the workday, when plaintiffs were present, and were only used three times in a three week period. In addition, the plaintiffs, who were not suspected of wrongdoing, were not recorded during Hillsides' surveillance and were never in the office when the video equipment was activated.

After the plaintiffs discovered the video equipment, they filed suit alleging, among other things, that Hillsides violated their common law and constitutional privacy rights. The trial court granted Hillsides' motion for summary judgment and dismissed the case. The Court of Appeal reversed, and the Supreme Court granted review.

In reversing the Court of Appeal, the Supreme Court found that Hillsides' video surveillance measures intruded upon plaintiffs' reasonable expectation of privacy. Specifically, the Court noted that Hillsides provided an enclosed office with a door that could be closed and locked and window blinds that could be drawn. "Such a protective setting generates legitimate expectations that not all activities performed behind closed doors would be clerical and work related." Moreover, Hillsides' written computer policy was limited to use of the company's computer systems and did not contemplate video surveillance.

However, the Court ruled as a matter of law that Hillsides' surveillance program was not highly offensive or sufficiently serious to violate plaintiffs' privacy rights because the program was narrowly tailored in place, time, and scope and was prompted by legitimate business concerns.

What This Means

The Court's decision is noteworthy because it emphasizes that employers must proceed with caution before engaging in workplace monitoring or surveillance. Employers who monitor their employees through video surveillance should review their policies to ensure that employees are put on notice of the potential for monitoring. In addition, video surveillance should be limited in scope and must be supported by a legitimate business purpose.

This E-Update was authored by Lisa Frank.  For more information, or questions, please contact Ms. Frank or any Paul, Plevin attorney at (619) 237-5200