Workplace Surveillance and Investigations

Two articles in The New York Times today prompt consideration of the appropriate place for surveillance in the workplace. See "Unblinking Eyes Track Employees" and "American Apparel Ousts Its Founder, Dov Charney, Over Nude Photos".

Employers must strike the proper balance between an employee's privacy interest and the employer's interest in monitoring activity in the workplace. As a legal matter, so long as they give appropriate notice of their intentions and stay away from such intrinsically private places as restrooms, employers are free to monitor all conduct in the workplace. See, for example, TBG Ins. Services Corp. v. Superior Court, 96 Cal. App. 4th 443, 117 Cal. Rptr. 2d 155 (2002) (employer entitled to search employee's home computer because the employee had acknowledged the employer's policy allowing such access). For one of the restraints on the right to intrude, see Loder v. City of Glendale, 14 Cal. 4th 846, 59 Cal. Rptr. 2d 696, 927 P.2d 1200 (1997) (although applicants may be forced to submit to drug testing, existing employees may not in the absence of extenuating circumstances).

The "unblinking eyes" article discusses monitoring software that has helped businesses by identifying activities that make employees productive, but points out that, without some assurance of privacy, the surveillance may not be effective.

The article on the ouster of American Apparel's founder shows the importance of being able to investigate employee behavior, even at the highest levels of an organization. If there is not enough monitoring to ferret out harassing behavior, the entire organization may suffer irreparably.

Employee Privacy

A recent decision by the First District Court of Appeal in San Francisco reminds that employers must be sure to protect employee privacy. In Life Technologies Corp. v. Superior Court, Case No. A131120 (Jul. 14, 2011), the court reversed an order granting discovery of individually-identifying personnel information in an age discrimination and retaliation lawsuit. The question in such cases is whether there is a "serious invasion" of an employee's "reasonable expectation of privacy," as explained in Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360, 53 Cal.Rptr.3d 513 (2007).

The Court of Appeal identified the following principles for determining the discoverability of personnel records of non-witness third parties: (1) The public interest in preserving confidential personnel information generally outweighs a private litigant's interest in obtaining that information. (2) A private litigant may tilt the balance in his or favor only by showing a compelling need for particular information that cannot reasonably be obtained through depositions or from nonconfidential sources. (3) Even where the balance tilts in the private litigant's favor, the scope of disclosure must be narrowly circumscribed. In the case before the Court of Appeal, the trial court had failed to balance the interests correctly, and had failed to provide sufficient safeguards for the disclosures that it ordered. It should have required notice to the affected employees, and then sealed or severely limited the use and dissemination of the disclosed information.

Here are some additional examples of restrictions on acquiring and disseminating employee information:

(1) Applicants for employment may be subjected to drug screening, but once they become employed, may only be required to undergo drug screening where there is reasonable suspicion of improper activity. Loder v. City of Glendale, 14 Cal. 4th 846 (1997).

(2) Targeting a private office for video surveillance constitutes an intrusion into an area as to which the employee has a reasonable expectation of privacy, but the intrusion is not actionable unless the surveillance captures the employee's image. Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009).

(3) Employees may have a privacy interest in their work email and Internet use, but it can be overcome by a warning from the employer that email and Internet use is subject to monitoring and that employees should not expect to have any privacy when using the employer's systems. TBG Ins. Services Corp. v. Superior Court, 117 Cal. Rptr. 2d 155 (2002).

(4) Employers must not access employees' confidential medical information without consent, and must not retaliate against employees for standing on their right confidentiality of their medical information. Pettus v. Cole, 49 Cal. App. 4th 402 (1996).