Isn’t there some sort of right to privacy in California? Well, yes, but don’t count on it in the workplace. California has both a common law right of privacy and an express, constitutional right to privacy (Cal. Const., art.1, sec.1). That right is theoretically guaranteed not only against the state, but against private actors (like, for instance, employers). From early on, the California Supreme Court’s decisions under that constitutional provision have tended to reduce the scope of this supposedly fundamental right. In Hill v. NCAA (1994) 7 Cal.4th 1, the Court found a forced urine test of a college athlete as a condition to compete to be non-violative of the athlete’s constitutional right. Why? The NCAA had a good reason to require the test. Nobody wants college athletes juiced, right? Thus, a collegiate athletic association’s reasonable concerns trumped our state constitution’s right to privacy. In Hernandez v. Hillsides, Inc., (PDF, 221KB) (2009) 47 Cal.4th 272, decided in August, employees — who assumed that if they worked in a closed space with closed doors they might have a reasonable expectation of privacy -– found that their reasonable expectation could be trumped by any intrusion (including hidden cameras) the Court deems to be more important than the employee’s right to privacy.

Ms. Hernandez and her co-worker, Ms. Lopez, were administrative employees of Hillside, a non-profit residential facility for neglected and abused children. Management determined that one of the computers in plaintiffs’ office was being used, after hours, to access pornographic web sites. Without informing plaintiffs, management placed a hidden video camera in the office, which could be activated at any time to observe and/or record what was going on in their office. Both women changed clothes and engaged in other appropriate, but presumably private activities in the office. Management claimed that they did not turn the cameras on until after hours, when the improper internet access was taking place – a time when the plaintiffs would not be in the office. Plaintiffs, upon learning of the hidden camera, were horrified, particularly given that one of them made sure the door was closed and changed into her athletic clothes virtually every day before leaving work.

The legal analysis of these sorts of claims seems straight-forward enough: Has there been an intrusion into a protected zone of privacy and, if so, was it so unjustified and offensive as to constitute a privacy invasion? If that sounds pretty subjective, that’s because it is. In Hernandez, the Court first found that the women did, in fact, have a reasonable expectation of privacy (and thus, the hidden camera was an intrusion into a protected zone of privacy). Nonetheless, if the defendant can establish a “countervailing” interest for the intrusion the courts will conduct a balancing test. Whether the plaintiff wins or not is a function of how the court weighs the countervailing rights in a particular case. In the Hill case, above, the NCAA’s interest in drug-free competition trumped the athlete’s privacy interest. In Hernandez, the defendant’s interest in ferreting out the person using its computers to access pornography (an attempt which failed, by the way) trumped the plaintiffs’ interest in not being subject to secret video observation of their office. Note that a number of factors contributed to the Court’s conclusion in Hernandez. The facility was a facility for abused children and management was particularly sensitive to employees accessing pornography in such an environment. Also, there was no evidence that the camera was turned on during the work day when plaintiffs were there, and the evidence was that the intent was to turn on the camera only after plaintiffs had left.

So, what about that right to privacy in the workplace? The answer: a qualified maybe. The lesson for California employees is that our courts are fairly easy to convince where an employer can advance a fairly good reason for even the sort of fairly extreme privacy invasion that the Hernandez plaintiffs were subjected to (a secret hidden camera which could have – even if it did not, observe and record whatever they did in their apparently private workspace). The safest course for an employee may be to assume that, at least in the workplace, his or her zone of privacy may not extend beyond his or her own head.