Hernandez v. Hillsides: Narrowing workplace privacy in California


The California Supreme Court verified that staff have a sensible expectation of privacy in the workplace, but held that in some circumstances, those legal rights may perhaps be limited, getting a backseat to an employer’s “respectable small business passions.” In Hernandez v. Hillsides, 47 Cal. 4th 272, 211 P.3d 1063 (Cal. 2009), the Court verified a grant of summary judgment to an employer who executed concealed, off-several hours online video surveillance in its employees’ semi-personal office in an work to stop probable damage to its minimal clients. The unique specifics of the circumstance drove the end result, but the top position is apparent – staff do not have an complete ensure of privacy powering every shut doorway in a workplace.


The government director of Pasadena’s Hillsides Kid’s Heart, a facility that properties abused youngsters, uncovered that anyone had been viewing pornography on employee Maria Lopez’ laptop or computer in the wee several hours of the morning. This brought on certain problem, as numerous of the sixty six boys and girls in home at the centre had been the victims of physical, emotional, and sexual abuse, and a person viewing pornography late at night time could perhaps pose a threat to the youngsters.

In an attempt to capture the perpetrator, the government director set up concealed online video surveillance devices in the office shared by office director Abigail Hernandez and administrative assistant Lopez devoid of informing Hernandez and Lopez of the digicam. Neither Hernandez nor Lopez ended up suspects, and the digicam was only activated just after get the job done several hours – neither Hernandez nor Lopez ended up at any time recorded. Nonetheless, when the two women uncovered the digicam, they ended up distraught and sued Hillsides for invasion of their privacy.

Los Angeles County Exceptional Court Choose C. Edward Simpson granted summary judgment in favor of Hillsides, but Los Angeles’ 2nd District Court of Appeals reversed that conclusion, holding that mere placement of digicam devices in the women’s office devoid of their understanding constituted an invasion of their privacy. Hillsides appealed to the California Supreme Court, which reversed the Court of Appeals conclusion and upheld the grant of summary judgment. Hernandez v. Hillsides, 47 Cal. 4th 272, 211 P.3d 1063 (Cal. 2009).

There is a restrict to the expectation of privacy in the workplace

California regulation on workplace privacy is properly set up at its extremes — courts have authorized covert videotaping in open and accessible workplace areas while prohibiting videotaping in areas reserved for private acts like restrooms and dressing areas. The specifics introduced in Hernandez, even so, current the location in concerning those two extremes.

The Hernandez plaintiffs claimed invasion of their appropriate of privacy as set up beneath equally the California Constitution and widespread regulation. To confirm a declare primarily based on the California constitutional privacy appropriate, a plaintiff ought to exhibit that 1) he had a lawfully safeguarded privacy interest 2) he had a sensible expectation of privacy and 3) the defendant’s carry out constituted a critical invasion of the privacy appropriate. 47 Cal. 4th at 287.Under the widespread regulation tort declare for invasion of privacy, a plaintiff ought to establish an intentional intrusion into a personal location or into personal affairs in a way that would highly offensive to a sensible person. Id. at 286.

Under equally the constitutional and widespread regulation promises, the evaluate of equally the expectation of privacy and seriousness or offensiveness of the invasion is primarily based on social norms and specifics of the unique circumstance.What’s more, in analyzing equally promises, the courtroom performs a balancing take a look at, weighing the intrusion from the defendant’s justifications and countervailing passions to establish whether the privacy violation is actionable. Id. at 287-288.

The Hernandez courtroom acknowledged the mainly parallel things of the two privacy actions, locating that equally promises have in essence two things: “(1) the mother nature of any intrusion on sensible expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, which includes any justification and other pertinent passions.” Id. at 288.

The Court agreed with the Court of Appeal’s determination that a jury could uncover that Hillsides intruded on the plaintiffs’ privacy. The Court acknowledged that staff do have some expectation of privacy in a shared or solo office, composing that the plaintiffs “had a sensible expectation beneath extensively held social norms that their employer would not set up online video devices able of monitoring and recording their pursuits – person and get the job done-connected – powering shut doors devoid of their understanding or consent.” Id. at 277.

Nonetheless, the Court disagreed with the Court of Appeals on the next ingredient of the privacy promises, locating that the intrusion was not highly offensive or adequately critical to represent an actionable invasion of privacy. Id. at 295. To arrive at this summary, the Court concentrated on the unique specifics of the circumstance, which includes the limited scope of the surveillance, the small business interest of the employer, and extra. “Activation of the surveillance technique was narrowly customized in location, time, and scope, and was prompted by respectable small business problems,” wrote the Court. “Plaintiffs ended up not at danger of becoming monitored or recorded for the duration of regular get the job done several hours and ended up by no means really caught on digicam or videotape.” Id. at 301. Balancing the mother nature of the intrusion from the employer’s justification, the Court located in favor of the employer in this circumstance.

The plaintiffs argued that employer could have employed considerably less intrusive alternative indicates, but the Court made it apparent that while companies should consider possibilities, it require not always consider the minimum offensive alternative if it would be considerably less successful in assembly the employer’s aims. Id. at three hundred.


At very first glance, Hernandez may perhaps appear to chip absent at employees’ appropriate of privacy in the workplace, as staff have historically savored a heightened expectation of privacy in personal or semi-personal places of work compared to open, extra community workplace areas. Nonetheless, it is really apparent that the Hernandez end result mainly hinged on the unique specifics – the plaintiffs ended up by no means really recorded, ended up not the focus on of the recording, and the employer had a unique and probable critical small business interest to secure. When it arrives down to it, the Hernandez plaintiffs may perhaps have made a mountain out of a molehill.

Nonetheless, the circumstance cost the defendants in legal expenses and methods, so companies should consider classes from Hernandez that could help save them this sort of litigation prices. Initially, companies should make privacy guidelines pretty apparent to staff as a result of ample see and dependable software and enforcement. If staff are instructed that they should have no expectation of privacy in their office, then they can not productively declare a breach of a privacy appropriate. Second, when workplace circumstances come up that may perhaps warrant surveillance, companies should consider the time to consider possibilities and document the conclusion-producing course of action that guide to the option of surveillance around other options.

Eventually, companies should not see Hernandez as a absolutely free pass to videotape staff. There are apparent statutory provisions in California completely prohibiting particular varieties of invasion of privacy. Far more importantly, there are conditions wherever the balancing take a look at might idea the other way, locating that the employer’s justification does not outweigh the seriousness or mother nature of the invasion. Businesses considering implementation of a surveillance technique should make contact with an seasoned work lawyer for tips on the scope and use of the supposed technique.