A Primer on California’s Privacy Laws
The California Constitution, Article 1, Section 1 provides that all persons have a right of privacy. According to this section, this right of privacy extends to all "persons." The California Supreme Court has held that employers, like all people, also have a right to privacy, and this includes the right to monitor employees subject to certain conditions. This right stems from the state’s recognition that private relationships (such as those that exist in employer/employee relationships) require some assurance that the privacy of these relationships be safeguarded from overly intrusive oversight and monitoring.
In deciding whether an employer has properly engaged in monitoring and/or surveillance of its employees, the California Supreme Court has required that courts "balance the competing interests of the employer’s use of the surveillance and its impact on the privacy rights of the employees." Thus, an employer’s legal right to monitor employee activities in the workplace is not absolute. The right to monitor, however, is recognized under California law.
In analyzing the employer/employee relationship, the California Supreme Court has identified several circumstances in an employment relationship in which employers generally have a right to conduct surveillance and monitoring of employees or employees’ activities. First, the court has found, in the context of emails, that employer emails that simply inform employees of email policies and procedures are not a violation of employee privacy rights. Next, the court has found that where computers are supplied to employees for work purposes , this indicates that the computers are owned by the employer and gives notice to the employee that the email system is not to be considered private. Third, the court has found that employers may monitor employees’ emails or other electronic communications where employees have given consent by using company email or other company electronic communication systems. Fourth, the court has found that an employee lacks a reasonable expectation of privacy under the laws of California when using an employer’s computer system to communicate through email where the employer reserves the right to monitor the use of the computer system and emails.
In Avibezier v. San Francisco Unified School District, the California Court of Appeals reiterated that, in balancing the employees’ privacy rights with an employer’s legitimate business interests, employers are free to conduct surveillance or monitoring in the workplace. The court explained that it implicitly drew the distinction that employers may conduct surveillance of employees’ work communications to ensure employees are conducting work for work reasons. However, the court concluded that if the surveillance intrudes on private activities, employers must demonstrate the surveillance is for a legitimate purpose and is confined in scope to the purpose, and is otherwise lawful.
Unless the employee has no reasonable expectation of privacy at work, employers likely will not be authorized to place video cameras in break rooms or other locations in the workplace unless, as in Avibezier, the employer can show the surveillance is for a legitimate business interest. Asserted justifications such as discouraging theft or sexual harassment are unlikely to be considered "legitimate business interests."
Restrictions on Cameras in Breakrooms
To protect the privacy rights of employees, California imposes legal restrictions on an employer’s ability to monitor employees on its premises. The Constitution prevents employers from monitoring the private communications of employees, such as listening in on a phone conversation, accessing the content of personal text messages, or reading emails that were created using an employee’s private email account. To the extent that an employer engages in electronic surveillance by, for example, installing cameras in its break room, the employer must do so in a manner that is more likely to not violate California law.
In California, a business owner may be liable for damages if the owner "[operates] a device for observing or overhead recording another person engaging in a serious offense in a bedroom, bathroom, change room, fitting room, cottage, cabin, lodge, or sauna." California Penal Code section 647(j)(3)(A). Although on its face this statute only covers voyeurism (which may not apply to a break room), the California Attorney General has applied this law to prohibitions on observing employees in break rooms:
Bathroom stalls and dressing and fitting rooms have been recognized as areas in which there exists an expectation of privacy which makes surreptitious observation unreasonable, particularly in the form of viewing by camcorders, mirror systems or other mechanical devices…. Because of the special nature of such settings, where people are necessarily isolated from others, unless a supervisory need should dictate, it may also be concluded that the installation of video cameras in any kind of break room, lunch room, or locker room should constitute a violation of Penal Code section 647, subdivision (j). (Emphasis added.) 64 Ops.Atty.Gen. 651, 654 (1981).
Moreover, if an employer decides to use video cameras on its premises and parks the camera in a manner that allows the camera to film the employee working at her desk, the employee may sue her employer for video voyeurism, intentional infliction of emotional distress, and invasion of privacy, assuming that the camera is monitoring areas where the employee would expect privacy and capturing images of the employee going to the restroom while at work. See Buscher v. Gordon & Wong Law Group, 2014 WL 1347368 *3 (N.D. Cal. 2014) ("[P]laintiff alleged . . . that defendant recorded her unsupervised comings and goings in and out of the restroom . . . .") (Relying on Kelley v. Rectrix Aerodome Ctr., Inc., 2010 WL 2348346 *18-19 (Mass. Super. 2010)). If required, an employer must offer all employees notice and/or obtain the consent of each employee before installing video cameras in the workplace.
Absent unusual circumstances, such as safety and security concerns, this author generally recommends against the use of video cameras in a break room. If an employer determines that it absolutely needs to install cameras in break rooms, the employer should obtain consent of the employees and consider posting a sign in the break room advising employees of the video cameras near the tables or the counters.
What Employees Can Expect
Employees generally expect a greater level of privacy in areas set-aside for relaxation, such as break rooms, lunchrooms and conference rooms. This contrasts with an employer’s right to monitor work areas much more closely. Generally, the law protects an employee’s reasonable expectation that he or she could enjoy some degree of privacy when enjoying a meal or drink, on break, or in a meeting. For example, employer assassins are not permitted to traverse into non-work areas to make video recordings without authorization. (Hicks v. Gates Rubber Co. (Anderson, 2002) 262 F.3d 1219, 1230 [10th Cir., 2001] (Under Colorado law, an employee has a reasonable expectation of privacy in a break room [{or a conference room}].)
However, a few courts have curtailed employee privacy in non-work areas by allowing surveillance where the employees’ expectations of privacy may not be deemed to be quite as high. Each case will turn on its unique facts. (See e.g. O’Conner v. Ortega (2004) 480 U.S. 709 [plausible reasons that justified employer intrusion into employees’ workplace area exist in a school where teachers could come to the faculty lounge to conduct private conversations].)
In sum, private areas, places of rest, conference rooms, or even common areas where employees would expect privacy or may conduct personal business will have a higher expectation of protection from company surveillance than a work area.
Exceptions and What About the Bathroom?
In limited situations, employers may obtain express consent from employees to record conversations in break rooms, potentially authorizing a form of surveillance. This exception, however, does not open the flood gates for employer surveillance in break rooms. Any exception based on security or performance monitoring will likely be a point of contention. For instance, if the break room is at the entrance or exit of an employee work area, the employer may be able to demonstrate to a court that the surveillance is lawful for purposes of monitoring work-related security. The employer would then be required to adequately train employees regarding the surveillance system and care to inform employees it is being used in the break room . We have also seen other unconventional scenarios under which Courts have found this exception to apply. One example is with one company seeking to take recordings and notes of work-related discussions in a break room where employees congregated. The Court in that case found the employer’s activities crossed over from surveillance to permissible employee monitoring to ensure compliance with work rules. The company set up a camera alert system to monitor employee behavior during break times to track on time and off time, ill time, and tardiness. Lastly, the General Counsel of the NLRB has formally expressed the opinion that the use of cameras may be a form of surveillance, which is unlawful under the NLRA if its primary purpose is to gather evidence against employees after their union activity.
The Legal Results for Employers
Potential Legal Consequences for Employers:
If an employer violates the law, like with perhaps an illegal surveillance camera in a break room, then it is possible that they might be liable for three (3) types of penalties. Violaotons of the Penal Code can mean the business is liable for $2,500.00 per unlawful recording or interception of the communication. Violation of this particular law can also mean that the employer might be liable for punitive damages and civil costs, as well as possibly limiting the ability of the employer to declare proprietary rights to the recorded material. Civil trespass, which would generally be available to a trespass on a person’s body, may also have application to unlawful interceptions of conversations, although the nature of the trespass is somewhat different. In any event, the penalties may be severe from civil action to be filed against an employer engaged in illegal actions such as these: $5,000.00 for each act of interception of communication unlawfully or without permission; punitive damages; civil costs; and the right of the person aggrieved to seek injunctive relief by making sure the unlawful interception does not continue. The key is that if this type of recording did take place within the break room and our of the view of the employees as alleged, the company can be subject to severe civil penalties and lawsuits for having done so.
A Best Practices Guide for Employers
To ensure compliance with the legal requirements discussed above, and to avoid potential employee claims, employers should consider the following best practices when deciding whether to install a camera in the workplace, or when monitoring an existing camera:
- Inform employees about the reasons for installing a camera in the break room or elsewhere. If the employer is only installing a camera for security purposes and is not using the camera to monitor employee performance, then the employer should explain that in a notice posted in or around the break room. In general, courts and the DLSE will allow employers to install a camera for security and safety reasons.
- Avoid installing a camera in bathrooms. Breakroom privacy concerns aside , because California law imposes specific legal obligations on employers regarding the use of cameras in private areas such as restrooms, bathrooms should not be exempt from this practice.
- Weigh the potential benefits of installing a camera in the breakroom against the potential privacy concerns of employees. Courts considering the reasonableness of surveillance have been influenced in part by whether the surveillance invades an area like a breakroom that employees can reasonably expect would be private enough to warrant a claim for breach of the right to privacy or whether instead, the employer has engaged in a legitimate business activity that employees expect and consented to. If the latter, the court may conclude no claim exists.