Laura Shelby and Holger Besch Published in
California Labor & Employment Law Review
“Hidden Cameras in the Workplace: Hernandez v. Hillsides and the Permissible Scope of Employee Surveillance”

Laura Shelby and Holger Besch’s article, “Hidden Cameras in the Workplace: Hernandez v. Hillsides and the Permissible Scope of Employee Surveillance,” was published in the January 2010 issue of California Labor & Employment Law Review. Their article discussed the Hernandez v. Hillsides case where the California Supreme Court found that the employer’s installation of a hidden surveillance system in a “semi-private” office did not constitute an actionable invasion of the employees’ privacy under either a constitutional or common law theory.

According to Laura and Holger’s article, the employer was a home for abused and neglected children that had a significant interest in setting up surveillance equipment to try to prevent an intruder or employee from viewing pornography on company computers. The camera and motion detector were disabled during the workday so there was no picture showing and no recording while the plaintiffs were in their office. The court acknowledged that obtaining plaintiff’s consent might have risked disclosing the surveillance plan to other employees. Similarly, stricter regulation of employee computer use might have stopped the improper use of the computers, but would not have helped the employer identify the employee performing the activities, who posed a risk of liability and harm in the workplace. As the authors note, the court agreed with Hillside that there was no evidence that the employer had ever viewed or recorded the employees inside their office by means of the surveillance equipment, and they took steps to avoid capturing them on camera and videotape.

The authors note that the court’s decision firmly establishes that employers may conduct surveillance in the workplace without violating privacy rights, at least under particular circumstances. However, they recommend that employers not see this decision as an invitation to indiscriminately conduct workplace surveillance without notice to employees. Instead, the authors suggest that employers take note that surveillance, such as that conducted by Hillside, may be permissible in limited circumstances.