The following is a guest blog post by Cynthia E. Fruchtman, a lawyer who represents employers and employees in all aspects of the employment relationship and represents businesses in commercial and employment-related litigation.
It is becoming increasingly common for employers to monitor employee workplace activities electronically. For employers, investigation methods such as video camera surveillance, computer monitoring, and drug testing may be seen as an aid to efficient operations. But employer’s beware: These tools can create several potential areas of liability.
First, invasion of privacy is clearly a potential issue. Everyone is guaranteed the right of privacy under Cal Const art I, §1. Employer’s should take note that an employee is less likely to have an expectation of privacy when he or she is warned by a handbook policy that a search can occur at any time, with or without notice, for any legitimate business purpose. Schowengerdt v U.S. (9th Cir 1991) 944 F2d 483 (no reasonable expectation of privacy in office or desk in light of well-known security procedures); Security & Law Enforcement Employees, Dist. Council 82 v Carey (2d Cir 1984) 737 F2d 187, 201 (rule book warning employees of potential search was basis for lessened privacy expectation). This means that a clear policy providing for e.g. video surveillance in the workplace can go a long way toward insulating an employer from liability.
When applying the “reasonable expectation of privacy” standard, courts will look into and weigh various factors, such as the degree of offensiveness and seriousness of the privacy intrusion, as well as the employer’s motives and justifications. City of Ontario v Quon (2010) ___ US ___, 177 L Ed 2d 216, 130 S Ct 2619 (police department could obtain and review content of text message information sent and received by officers on pagers owned and issued by department without violating Fourth Amendment rights); Hernandez v Hillsides, Inc. (2009) 47 C4th 272, 97 CR3d 274 (no invasion of privacy when hidden video camera operated after hours in office area to monitor computer use to access porn sites).
Second, there are statutes that restrict an employer’s ability to electronically monitor its employees:
- California Labor Code §435 prohibits video surveillance of employees in restrooms, locker rooms, or changing rooms unless authorized by court order.
- The California Privacy Act (Pen C §§630-637.9) prohibits anyone (individuals, business entities, employers, or employees) from tape recording confidential communications without the knowledge and consent of all parties to the communication. The prohibition applies to both surreptitiously recorded face-to-face and telephone conversations. Coulter v Bank of America, N.A. (1994) 28 CA4th 923, 925, 33 CR2d 766. The test of “confidentiality” is objective, requiring nothing more than the existence of a reasonable expectation by one of the parties to the communication that no one else is “listening in” or overhearing the conversation. Flanagan v Flanagan (2002) 27 C4th 766, 773, 117 CR2d 574.
Third, Internet cameras, like websites, have a web address, which makes them vulnerable to being accessed by outside parties. Employers who use Internet cameras need to be sure that they secure the images with software firewalls, dataencryption, or passwords.
Finally, employers who utilize GPS tracking-type devices to monitor their employees’ movements should be aware of potential Fourth Amendment constitutional implications. Although the law is still developing in this area, the trend seems to allow employers to use GPS tracking devices to track employees who make outside calls on, or deliveries to, clients and customers on company time using company vehicles or computer devices or PDAs provided by the employer. See Oman v Davis Sch. Dist. (D Utah, Sept.19, 2003, No. 1:03CV57DAK) 2003 US Dist Lexis 27662; Gerardi v City of Bridgeport (Conn App 2007) 913 A2d 1076.
Technology certainly has its benefits, but employers shouldn’t forget that employees have rights and expectations that, if not properly addressed, may result in claims arising out of improper use of monitoring tools.
For more on workplace privacy, turn to CEB’s Advising California Employers and Employees, chap 13 and Privacy Compliance and Litigation in California, chap 8. On drafting employee handbook provisions on related privacy issues, check out CEB’s new book Drafting Employment Documents for California Employers, chap 9. Ms. Fruchtman is a co-author of both of those publications.
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