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JUDICIAL UPDATES Employees Allowed to Maintain Privacy Claims Against Employer The Court of Appeal has recently allowed two employees to continue to pursue their claims that their employer invaded their privacy unlawfully. The plaintiffs worked in clerical positions in an office building on the campus of Hillsides, Inc., which runs a residential facility for abused and neglected children. The plaintiffs shared an office with locking door and a window that had shades that could be drawn for privacy. They had used the office for private conduct, such as changing clothes before going to the gym, and other things that reasonably supported the conclusion that the plaintiffs had an expectation of privacy while in their office. Hillsides’s computer technician informed management that he believed that an employee was accessing pornographic web sites at night from some of the company’s computers, including the computer in the plaintiffs’ office. Management decided to conduct surveillance in areas where the improper computer access had possibly taken place. Management did not inform the plaintiffs of the decision because the plaintiffs were considered to be part of a group of employees that gossiped and might tip off the unknown offender that Hillsides was attempting to catch. The surveillance camera operated with a motion detector. On one occasion, the camera and motion detector were in the plaintiffs’ office after they had left for the day, and the equipment was then removed before they arrived the next morning. Later, the equipment was left functioning in the plaintiffs’ office, but on only two occasions was the wireless receptor “connected” to the television monitor and recorder in the storage room, where the surveillance was monitored. The company’s practice during this time was to connect the receptor before leaving at night, and then disconnect it before the plaintiffs arrived for work the following morning. However, the company could not provide any evidence about the three dates on which they claimed the surveillance system was actually activated and in operation. One day, the plaintiffs noticed a red light on a shelf in their office blinking when there was movement in front of it. They discovered the camera and eventually learned about the surveillance. They were extremely upset and did not return to work until later. They were allowed to see a tape showing footage of their empty office. The plaintiffs were never depicted on the tape. There was never any evidence that pornographic web sites were accessed from the computer in the plaintiffs’ office. The plaintiffs sued Hillsides for invasion of privacy and intentional and negligent infliction of emotional distress. In defense, the employer argued primarily that the plaintiffs could not succeed because (1) they were not recorded or viewed by the surveillance equipment, and (2) they had a diminished expectation of privacy that was outweighed by the company’s need to protect the children residing at their facility. The trial court agreed and granted summary judgment in favor of the defendants. On appeal, however, the Court of Appeal reversed that decision as to the cause of action for invasion of privacy. The court held that the plaintiffs did not have to establish that they were actually viewed or recorded in order to succeed on their claim for invasion of privacy. Under California law, the tort of invasion of privacy requires an intrusion into a private place, conversation or matter, and in a manner that is highly offensive to a reasonable person. Significantly, the harm occurs when the plaintiff’s privacy is invaded in an offensive manner, without consent. It is not necessary that information gained from the intrusion be disclosed or published to others. It is the intrusion itself that makes a defendant subject to liability. Based on the available evidence, the appellate court concluded that the plaintiffs had met their burden of overcoming summary judgment and being entitled to present their case to a jury. (Hernandez v. Hillsides, Inc., Court of Appeal, Second Appellate District, Case No. B183713; September 14, 2006.)
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