California law prohibits public and private employers, except the federal government, from making audio or video recordings of employees in restrooms, locker rooms or rooms designated by the employer for changing clothes, unless authorized by a court order. You cannot use recordings made in violation of this law for any purpose.1

The case of Hernandez v. Hillsides Children Center Inc. offers some guidance about video taping and privacy in the workplace.2 In that case, an employer believed someone was accessing pornographic websites from company computers and set up a motion-activated video surveillance system in the office where the unauthorized computer access occurred. The office, which was used by two female employees, had exterior windows with blinds that could be closed and a door that could be closed and locked. The video recorder was motion activated; it was turned on only at night after the employees had left the building and turned off each morning before employees came to work. Access to the video monitor for the camera was locked at all times. During the time the camera was installed, the recorder was activated only three times. At no time were any of the employees actually recorded.

An invasion of privacy claim requires that the employees show:

• That the employer intentionally intruded into a place in which the employee had a reasonable expectation of privacy.
• The intrusion would be highly offensive to a reasonable person.

The California Supreme Court determined that the employees had a reasonable expectation of privacy — they used the office to change clothes, the door could be locked, the blinds on the windows could be closed and the employer had not put the employees on notice that they were subject to video monitoring.

However, the video surveillance was not so “highly offensive nor sufficiently serious to warrant liability.”3 The employer taped only a location where prior misuse of the computer occurred, the camera was aimed at the desk and workstation that had previously been used, access to the actual monitoring equipment was limited and the room was secure. The surveillance took place during a short period of time before being discovered, was operational only after office hours and, at the most, video taping took place only once a week for three weeks.

The court agreed with the employer’s assertions that it took special care to avoid video taping the employees during work hours and that level of care was inconsistent with an intrusion that would be highly offensive to a reasonable person. The court disagreed with the employees’ argument that the employer was required to use less obtrusive means of investigating the misuse of company computers. However, the court did state that nothing in its opinion was meant to encourage the type of surveillance measures used by the employer, particularly the surveillance without prior notice to employees.

• Employers who want to monitor employees should consult with legal counsel before doing so.

Secret Videotaping in Open Workplace

In Sanders v. American Broadcasting Companies, the California Supreme Court held that a journalist secretly videotaping an employee in an open workspace constituted an invasion of privacy.4 The secret videotaping in that case was done as a part of an undercover investigative report on “tele-psychics” by a television reporter in a workplace with low, open cubicles where conversations could easily be overheard by anyone in the room.

The court concluded that the fact that a workplace interaction might be witnessed by others on the premises does not eliminate an employee’s reasonable expectation of privacy.

1. Lab. Code sec. 435