Employees successfully sue company for in-office surveillance

Oct 31, 2006 12:02 PM

           

Officials at Hillsides, a residential facility for abused children in California, decided to set up a hidden video camera in two employees' joint office after suspicions cropped up that someone was accessing pornography at night.

California's Second Appellate District has ruled that the two employees need not establish that they were actually viewed or recorded to succeed on an invasion of privacy claim, reports the California Employment Law Letter.

Abigail Hernandez and Maria-Jose Lopez worked for Hillsides Children's Center in clerical positions and shared an office. The office had a door that locked and a window with shades that could be drawn for privacy.

Believing that no one could see in, Hernandez often used her office to change clothes before leaving for the gym. Lopez occasionally used the office to show Hernandez how her figure was recovering after recently giving birth. Lopez would lift her shirt to expose her breasts and stomach in what she thought was the privacy of their office.

One Friday afternoon, Hernandez and Lopez noticed a blinking red light every time there was movement near a shelf in their office. Upon closer inspection, they discovered a camera plugged into the wall. The plug was hot to the touch. Extremely upset, they notified their supervisor, who called John Hitchcock, Hillsides' director. They demanded to view the surveillance tape, which showed scenes of the employees' empty office, Hitchcock adjusting the camera, and five minutes of static.

Hitchcock explained that he installed the motion-activated video surveillance system after Hillsides' computer technician reported that someone was accessing pornographic Web sites at night from the facility's computers, including the one located in Hernandez and Lopez's office. Hitchcock and the employer explained the importance of the surveillance by pointing out that it was the employer's business to protect children in the facility from potential abuse or exposure to pornographic activity.

In attempting to catch the pornographer in the act, Hitchcock placed a camera and motion detector in areas where the illicit computer access had taken place. He put a camera in Lopez and Hernandez's office -- on the shelf -- and set it up to broadcast images to a TV monitor and video recorder located in a storage room across the hall. The employer decided not to disclose the surveillance to either Hernandez or Lopez because it believed they would "gossip," inadvertently tipping off the pornographer.

Only four employees were aware that the surveillance equipment had been placed in their office.

Hitchcock attempted to explain to Hernandez and Lopez that the camera hadn't been installed to observe them but rather to catch the pornographer. He said the system had been "active" only at night on three occasions. Although the surveillance camera and the motion detector were constantly on and thus hot to the touch, they weren't connected to the wireless receptor on the TV monitor and recorder in the storage room.

Hitchcock assured Hernandez and Lopez that it was his practice to connect the receptor before leaving at night and disconnect it before they arrived for work in the morning. In fact, he explained that he had been planning to remove the camera on the very weekend that they had discovered it because no one had accessed pornographic Web sites from the computer in their office during the three-week period that he was "recording" the scene.

Unsatisfied with Hitchcock's explanation, Hernandez and Lopez sued him and Hillsides for invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress.

Hillsides argued that since the videotape footage showed only Hernandez and Lopez's empty office, their privacy couldn't have been invaded. Although the lower court agreed with the employer, the Second Appellate District didn't. Even if the employees weren't viewed or recorded, the appeals court found that Hitchcock still entered their office and secretly placed a functioning camera that was capable of transmitting images to a remote location. The images could be viewed or recorded at will by activating a remote receiver.

The court explained that the invasion of privacy involves an intentional interference with an individual's interest in solitude or seclusion, either to her person or private affairs or of a kind that would be highly offensive to a reasonable person. In other words, the intrusion itself made Hillsides and Hitchcock liable.

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