Tuesday, August 4, 2009
S.C. Rejects Claim Against Employer for Using Hidden Camera
By SHERRI M. OKAMOTO, Staff Writer
The California Supreme Court yesterday threw out a ruling by this district’s Court of Appeal permitting a lawsuit to proceed against a private employer for conducting hidden surveillance of its employees’ office.
Div. Three had reinstated the suit by Abigail Hernandez and Maria-Jose Lopez against Hillsides Inc., operator of a private nonprofit residential facility for neglected abused children in Pasadena, after Los Angeles Superior Court Judge C. Edward Simpson granted summary judgment on the plaintiffs’ claims for invasion of privacy and for intentional and negligent infliction of emotional distress.
Hillsides admitted that it installed a hidden camera in plaintiffs’ shared office in October 2002 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.
Only four people knew about the surveillance. Although the facility director, John Hitchcock, said that the plaintiffs were not personally suspected of having done anything illicit, they were not informed of the plan because he was concerned that “gossip” would spread and tip off the culprit.
The plaintiffs discovered the camera after noticing 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. He claimed that he had rarely activated the surveillance system and had never done so while the plaintiffs were present.
The plaintiffs were both shown the surveillance footage upon demand. No one appeared on the tape except for Hitchcock, who was briefly seen setting up the camera and moving around inside plaintiffs’ office. The only other recorded images were of an empty desk and computer, the surrounding work area, some closets and the entrance to the office.
Based on these facts, the trial court found no triable issue as to any cause of action stated in the plaintiffs’ complaint. Absent any evidence that plaintiffs were observed and recorded by the hidden camera, Simpson determined that no intrusion on plaintiffs’ reasonable expectations of privacy had occurred.
Alternatively, he concluded that any privacy expectations plaintiffs had in their joint office were “diminished,” and were “overcome by Defendants’ right to a safe environment for its children.”
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.
Croskey said that whether the plaintiffs were actually recorded or observed by the camera was irrelevant to determining whether their privacy was invaded as the plaintiffs could reasonably expect that their employer would not install a hidden camera in their office and the employer’s conduct was highly offensive.
Writing for the unanimous high court, Justice Marvin Baxter explained that the plaintiffs’ privacy interests in their shared office space were “far from absolute,” but that they still had “a reasonable expectation under widely held social norms that their employer would not install video equipment capable of monitoring and recording their activities—personal and work related—behind closed doors without their knowledge or consent.”
But Baxter opined that the intrusion was not “highly offensive” to a reasonable person based on Hillsides’ “measured approach” in conducting the survelliance.
Noting that the surveillance efforts were confined to the area in which the unauthorized computer activity had occurred, access to and knowledge of the surveillance equipment was limited, only 21 days of surreptitious monitoring were conducted, and the equipment was only activated on three occasions after business hours, he reasoned from the undisputed evidence that the plaintiffs had not been exposed to the risk of covert visual monitoring any longer than was necessary to determine that the surveillance plan would not work.
Baxter further reasoned that Hillsides’ successful effort to avoid capturing the plaintiffs on camera was inconsistent with an egregious breach of social norms and that the surveillance was prompted by legitimate business concerns.
Because the accessing of pornography on company computers was inconsistent with Hillsides’ company policies and posed a risk that the perpetrator might expose Hillsides to legal liability, Baxter posited that a reasonable jury “could find it difficult to conclude that defendants’ conduct was utterly unjustified and highly offensive.”
He also emphasized that Hillsides was not required to prove that there were no less intrusive means of accomplishing its legitimate objectives of preventing a rogue employee from accessing pornography on Hillsides’ computers and minimizing a genuine risk of liability and harm.
“Nothing we say here is meant to encourage such surveillance measures, particularly in the absence of adequate notice to persons within camera range that their actions may be viewed and taped,” Baxter cautioned as he concluded the plaintiffs had not established, and could not expect to establish, that Hillsides’ conduct was highly offensive and constituted an egregious violation of prevailing social norms.
Arnold Kessler and Mark S. Eisenberg of Eisenberg & Associates represented Hernandez and Lopez, while Laura Wilson Shelby, Holger G. Besch, Candice Zee and Amy C. Chang of Seyfarth Shaw represented Hillsides.
Paul W. Cane, Jr., and Teresa J. Hutson of Paul, Hastings, Janofsky & Walker represented Employers Group and California Employment Law Council as Amici Curiae on behalf of Hillsides.
The case is Hernandez v. Hillsides, Inc, 09 S.O.S. 4647.
Copyright 2009, Metropolitan News Company