Hat tip to Sheppard Mullin.

You can read their more detailed analysis. I would just add that the technical holding in the Saunders case cited by the Hernandez court is not

As a matter of law, a claim of intrusion cannot fail merely because the
events or conversations which the defendant intruded upon were not
completely private from all other eyes and ears

as the court states.

The Saunders court merely held that an employee had an expectation of privacy at his or her workplace from non-employer third parties. It did not disturb that aspect of the lower court ruling which had flatly held that there was no expectation of privacy in the workplace from employers. And while no published California case may have held that public offices contained little or no expectation of privacy from employers, that is the majority rule in the United States.

This case would appear to overrule that technical holding.

While plaintiffs did not enjoy complete and absolute
privacy in their office, it was reasonable for them to expect images of
them in their office with the door closed would not be transmitted to
another portion of the building.

(2006 Cal. App. LEXIS 1390 at 24.)

It appears, then, that workplace surveillance in California will be treated with a very skeptical eye. While the ruling here is overturning a summary judgment, chances are that trial courts will see this merely as a “pro-privacy” decision, much in the same way that they saw Sav-On as a pro-certification case.

Indeed, this opinion implies that such surveillance must be narrowly tailored to fit a legitimate business interest, to borrow language from Constitutional law:

Defendants placed a motion-activated camera in a private office shared by plaintiffs, and left it functioning for no legitimate reason
while plaintiffs were present. Nor did defendants alert plaintiffs to
the presence of the camera, so they could modify their behavior to
protect their own privacy. Under these circumstances, defendants have
not established as a matter of law that their conduct was not highly
offensive.

(Ibid.) (Emphasis original.)

Of course, there is probably not much point in surveilling employees—or anyone—who are on notice that their conduct is being watched. It’s a self-defeating cycle. Now keep in mind, these are offices that anyone could walk into at any time. It appears to be the video-taping aspect alone that triggers potential tort liability here.

I often meta-blawg on the “shock and awe” tactics used by many law bloggers, but in this case, it does appear that any workplace surveillance (at least in non-customer/public areas?) should not be videotaped.

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