Last year, the Court of Appeal handed down an opinion in the relatively undeveloped area of non-public employee privacy rights vis-a-vis their employer, in Hillside v. Hernandez. That case held that a hidden camera in the workplace could constitute an invasion tort. The Hillside court had relied on an earlier opinion in Sanders v. American Broadcasting Cos. (20 Cal.4th 907).

The latter case involved a third party intruding on an employee’s workspace; it did not involve employer “intrusion” in its own premises. The Supreme Court in Sanders rolled back the broad holding of the Court of Appeal, which had flatly said that there was no right of privacy as such in the workplace. But it did not roll that point back with respect to the employer.

Nevertheless, the Court of Appeal in Hillside at least in part on that analysis, ran with that and held that the employer had some boundaries. For a while at least, that opinion was good law. It was depublished in January when the Supreme Court granted review. The briefs have been filed, but the case has not yet been argued.

Meanwhile, the Ninth Circuit held, in a case slightly off-point, that an employer may give law enforcement consent to search an employees office. (U.S. v. Ziegler (9th Cir. 2007) 474 F.3d 1184.) The case recognize, following the U.S. Supreme Court, that an employee has some expectation of privacy in his workplace against law enforcement. (Ibid. at 1189-90, citing Ortega v. O’Connor (1987) 480 U.S. 709, 716. (1987), accord Sanders, supra.) In Ziegler, the Ninth Circuit says that the employer has consent to allow searches of the employee’s workplace because it was “a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” (Ziegler, supra, at 1191.)

What impact will that have—if any—on the California Supreme Court’s decision in Hillside? Maybe none, because, to me, all they have to do is reaffirm their holding in Sanders: simply that while employees do have a right of privacy at work from the outside world, but not from their employers.

We shall see. I am adding this case to the track list.