At long last, we have an opinion from the California Supreme Court.
My analysis will be forthcoming shortly.
UPDATE:
The Court correctly identifies the distinguishing factor that made Saunders such a useless precedent: the “invader” in that case was not a co-worker. (Slip Op. 19-20.) The Court then lays out a spectrum between highly “public” areas of the workplace, and highly private areas, such as locker rooms (the latter are subject to an express statutory protection). But do employees have some reasonable expectation of privacy in a closed office? Yes.
Such a protective setting generates legitimate expectations that not all activities performed behind closed doors would be clerical and work related. As suggested by the evidence here, employees who share an office, and who have four walls that shield them from outside view (albeit, with a broken “doggie” flap on the door), may perform grooming or hygiene activities, or conduct personal conversations, during the workday. Privacy is not wholly lacking because the occupants of an office can see one another, or because colleagues, supervisors, visitors, and security and maintenance personnel have varying degrees of access.
(Slip Op. 21-22.) So, you would be mistaken—as I was—to go with the Court of Appeal in Saunders and suggest as a blanket rule that employees have no expectation of privacy in the workplace from their employers only, except for those areas specifically designated by statute. The Court apparently finds this kind of privacy in a “penumbra” analysis (i.e., the opposite of limiting the circumstances to an enumerated list) of legislative acts, such as those prohibiting changing room and other “peeping tom” behavior. The Court hints in dicta that a properly drawn policy might have abolished the expectation of privacy. Of course the problem here is that notice of surveillance basically destroys its utility.
The Court then engages in a lengthy factual analysis and concludes that because Hillsides was very careful about what they spied on and how, that even though this wasn’t necessarily the least intrusive means, because it served a legitimate purpose it was ok.
Privacy rights in California have always been all about balancing tests, which means that it’s very hard to know what to do in any given situation. Here, it looks like the message is that you can monitor an office to catch someone breaking the rules if you don’t create too much of a dragnet. How egregious the violation must be and how careful you have to be aren’t 100% clear to me.
It’s also not clear to me what would have happened if the Plaintiffs had been caught on tape in the following different circumstances: (1) doing nothing important; (2) doing something like changing; or, (3) being caught as the guilty party. Nor is it clear to me what effect scenario #3 would have on the liability for scenarios #1 or #2.
My sense is the Court did not like this case because it saw the Plaintiffs making a mountain out of a molehill. So, instead of taking the opportunity to expound some law in detail, they engaged in a fact-intensive analysis in order to dispose of this case. Oh well.
