Concerned that someone had been using a computer in the plaintiffs’ office to access pornography after work hours, a California employer set up a hidden surveillance camera in an effort to catch the perpetrator. The camera was never used during business hours while the plaintiffs were in their office and, as a result, their activities were not viewed or recorded via the surveillance system. Nevertheless, after discovering the hidden camera, the plaintiffs -- two female clerical workers -- filed suit, alleging among other things an invasion of their privacy.

The California Supreme Court in Hernandez v. Hillsides Children Center concluded that the trial court improperly failed to grant the employer's summary judgment motion. In reaching this conclusion, the court held that the surveillance was done in a manner that was "drastically limited in nature and scope" to avoid any surveillance of the plaintiffs themselves and that the employer, a private nonprofit residential facility for neglected and abused children, including the victims of sexual abuse, had strong countervailing concerns for the safety of children under its responsibility that justified the employer's actions.

The court emphasized that its decision should not be construed as encouraging employers to use hidden video surveillance to investigate workplace misconduct, particularly in the absence of adequate notice to persons within camera range that their actions may be viewed and taped. Indeed, the court acknowledged that the employer's use of hidden video surveillance intruded upon the plaintiffs' expectation of privacy. Nevertheless, in this particular case, the court was satisfied that the intrusion was neither "highly offensive" nor "an egregious violation of prevailing social norms," which would have been necessary for a finding of liability under California law. Instead, the court concluded that, from the standpoint of a reasonable person, defendants had made vigorous efforts to avoid intruding on the plaintiffs' visual privacy altogether. As the court noted, "activation of the surveillance system was narrowly tailored in place, time, and scope, and was prompted by legitimate business concerns. Plaintiffs were not at risk of being monitored or recorded during regular work hours and were never actually caught on camera or videotape."

Simply put, the stars were aligned for this employer. One misstep in scheduling the operation of the camera; one unexpected return of one of the plaintiffs to her office after hours, or any number of other potential miscalculations could have brought about a different result. Before resorting to hidden video surveillance, employers would be wise to consult counsel and to strongly consider other, less intrusive means for investigating potential workplace misconduct.