California employees’ reasonable expectations of privacy are protected by Article I, Section 1 of the California Constitution and by the common law tort known as “invasion of privacy.” In determining whether particular acts or policies go too far in encroaching on an employee’s privacy rights in an impermissible way, the law requires balancing (1) an employee’s reasonable expectation of privacy with (2) an employer’s legitimate business purpose for the intrusion.
When analyzing whether an employer has invaded the privacy of an employee, the court first looks to whether the employer intentionally intruded into a place, conversation, or matter as to which the employee has a reasonable expectation of privacy. Second, the intrusion must occur in a manner that is highly offensive to a reasonable person. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231)
Courts have consistently held that notice of and consent to an impending potential intrusion can “inhibit reasonable expectations of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 36.) Thus, when considering placing surveillance cameras in your place of business, whether for safety or security issues or any other reason, the following guidelines should be followed to minimize any potential liability or claims of invasion of privacy:
Mark the Cameras – Well-marked cameras reduce an employee’s reasonable expectation of privacy. Having a camera plainly visible and located next to a sign stating “recording in progress,” greatly diminishes an employee’s claim of an expectation of privacy. The courts use a sliding scale- the more obvious an employer is about its video surveillance practices, the less likely a reasonable expectation of privacy exists or will be deemed to have been unlawfully intruded on.
Create, Distribute and have the Employee Execute a Clear Workplace Video Surveillance Policy – This can be done by placing a policy in an employee handbook or through a stand-alone policy. Employees are less likely to have a recognized claim that their privacy rights have been invaded if they are put on notice by a specific written policy that the employer records employees in open work areas. The policy should include the scope, duration and methods of surveillance. It should also notify employees that video recordings may be used to monitor work performance and may be used as part of any discipline-related investigation. Finally, employers should require each employee to sign an acknowledgment that he or she has reviewed and understands the video surveillance policy.
Limit the Number of People who can Access the Cameras – Since privacy interests are at play, limit the number of people who can access and control the footage of the surveillance cameras. If possible, limit access to the CEO and one or two other high ranking (and trusted) employees.
Do Not Place Cameras in Sensitive Private Places – Do not place any video or audio recording devices in any bathrooms, locker rooms, or rooms designated by an employer for changing clothes. Secret cameras can also cause major concerns- at a minimum, the safest and most practical course of action for employers is not to place secret cameras in work areas that employees would not expect to be recorded. These include offices, cubicles, break rooms, file rooms, etc.
If you have questions regarding the use of video surveillance cameras or need assistance in updating your employee handbooks or polices, the attorneys at Navigato & Battin are here to offer assistance.