Metropolitan News-Enterprise


Thursday, January 4, 2007


Page 1


S.C. to Rule on Employer’s Liability for Using Hidden Camera


By a MetNews Staff Writer


The California Supreme Court yesterday agreed to decide whether employees who claim that their privacy was violated by their employer’s use of a hidden camera at work must prove that they were actually recorded or viewed by the camera.

The justices, at their weekly conference in San Francisco, voted 6-0 to grant review in Hernandez v. Hillsides, Inc., B183713. Justice Carol Corrigan was absent and did not participate.

The plaintiffs, Abigail Hernandez and Maria-Jose Lopez, had won a Court of Appeal ruling reinstating their suit against Hillsides, Inc., operator of a residential facility for abused children. The plaintiffs, clerical employees, claim they were subjected to illegal surveillance in their office.

Hillsides acknowledged installing the camera, saying it did so in October 2002, three months after a computer technician reported that computers, including one in the plaintiffs’ office, may have been used to access pornographic websites at night.

A motion-activated camera, set up to transmit images to a monitor in a storage closet, was installed initially in the company’s computer lab, but was subsequently moved to the plaintiffs’ office.

Four People Knew

Only four people knew about the surveillance. The plaintiffs were not personally suspected of having done anything illicit, the facility director, John Hitchcock, testified, but were not informed about what was going on because they were considered gossipers who might inadvertently tip off the person or persons misusing the computers.

The plaintiffs discovered the camera after notice a blinking red light on a shelf one afternoon. After notifying their supervisor, they learned from the director why the camera was placed and were assured that they were not themselves targets of the surveillance.

Hitchcock said the camera had been in the office three weeks, that there had been no misuse of the computer in that time, and that he was planning to remove the camera that weekend.

The plaintiffs sued for invasion of privacy and for intentional and negligent infliction of emotional distress.

In moving for summary judgment, Hillsides contended that there was no invasion of privacy because the system had only been activated when the plaintiffs were outside the office, so there was no actual recording or viewing of the plaintiffs by the camera; that there was a diminished expectation of privacy because it was possible to peek into the office from a railing outside the office or through the opening in the “doggie door” to the office, and because at least 11 people had keys to the office; and that whatever privacy interests the plaintiffs had were outweighed by the need to catch the person accessing pornography.

Los Angeles Superior Court Judge C. Edward Simpson granted summary judgment as to all claims.

Justice Walter Croskey, writing for the Court of Appeal, agreed that since the plaintiffs were not the target of the surveillance and could not show that they were actually viewed, the “extreme and outrageous conduct” element of a claim for intentional infliction of emotional distress was not met.

The justice concluded, however, that the women had a triable claim for invasion of privacy.

Whether the plaintiffs were actually recorded or observed by the camera is irrelevant to determining whether their privacy was invaded, the justice said. The essence of the claim, he explained, is that the defendant has intruded upon the plaintiff’s solitude, so it is not necessary for the plaintiffs to show that something harmful to them was made public.

Croskey cited several out-of-state cases, including one from Michigan in which the court held that the owner of a roller skating rink could be held liable for installing see-through panels allowing outside observation into a restroom used by the female plaintiff and her daughter, even if they were never actually observed.

The justice went on to say that the plaintiffs, while not enjoying “complete and absolute privacy,” could reasonably expect that their employer would not install a hidden camera in the office.

Jury Question

Croskey also concluded that the justification issue must be resolved by a jury. He noted that there was no evidence as to what pornographic websites had actually been accessed—“[w]hy defendants failed to produce this presumably compelling evidence...was not explained,” the justice wrote—nor was there any explanation as to why the camera had to be kept in the plaintiffs’ office during the day if they were not suspected of wrongdoing and the misuse was only suspected of taking place at night.

The plaintiffs’ attorney, Mark Eisenberg of Los Angeles, said he did not want to speculate as to why the high court granted review. But he noted that the court has taken a number of privacy cases in the past and said that he was confident in the correctness of his position.

“Prior, well established Supreme Court precedent establishes that there is a right of privacy in the workplace and that the plaintiff need not establish that information gathered in the workplace was publicly disclosed” in order to vindicate that right, he told the MetNews.

An attorney for the defendant could not be reached for comment late yesterday.


Copyright 2007, Metropolitan News Company