Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

On Monday, the California Supreme Court reversed the lower court decision in Hernandez v. Hillsides, a closely watched case involving video surveillance of employees. The court held that the defendant, Hillsides, Inc., a residential facility for neglected and abused children, did not violate two employees’ privacy by surreptitiously installing a concealed video camera in their shared office. Hillsides determined that one of the computers in the office had been used late at night to view pornography, and installed the camera in the hopes of catching the perpetrator.

The court’s opinion is particularly instructive for employers who are considering similar tactics to uncover workplace misconduct. To begin with, the court found that both employees had a reasonable expectation of privacy in their office even though (a) the office was shared, (b) several co-workers and supervisors had a key to the office, and (c) a “doggy door” at the bottom of the office door had no flap to prevent peeking into the office. The court relied on the facts that the office was not accessible to the general public; the employees could pull down the blinds to obscure public view through the office’s windows; the employees could lock the office door; and when the blinds were down and the door was locked, the employees would change clothes in the office and otherwise act as though the office were a private place. These circumstances prevail in many office settings. Consequently, employers, especially those in California, need to carefully consider whether a particular office setting is “private” before installing surveillance equipment there.

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Management-side lawyers and human resources professionals need to start thinking deeply about the key finding in a recent survey by The Creative Group, a staffing service company: more than one-half (57%) of 250 surveyed advertising and marketing executives responded that surfing the web during working hours is acceptable. How does an employer reconcile this apparent new-found acceptance of on-the-job Web surfing with the American Management Association’s finding in its 2007 survey of workplace monitoring that 30% of employers surveyed had fired an employee for Internet surfing at work?

Employers in more staid industries might shrug off the new survey result as a quirk of professions that appear to be more about creativity than productivity, but that would be too shortsighted. Let’s face it, nearly everyone surfs the Web at work at one point or another. Perhaps more importantly, the first generation to spend adolescence surfing the Web is starting to move into middle management and even senior management. This generational shift is rendering obsolete — in practice if not in form — corporate policies that forbid employees from using corporate electronic resources, i.e. Internet access, for non-business purposes.

Facing reality does not mean that employers must open the floodgates to pornography, fantasy football and online gambling. Instead, employers need to take up the challenging task of establishing rules for acceptable and unacceptable non-business use of the corporate Internet connection. The employer’s existing policies are a good starting point; employees should be barred from accessing any Web sites that communicate information which, if posted on the corporate intranet, would violate the company’s anti-discrimination and anti-harassment policies. Establishing bandwidth limits and prohibitions on Internet use that interferes with network operations should effectively eliminate most streaming media. Requiring employees to limit non-business use of the corporate Internet connection to breaks and meal periods and to no more than thirty minutes daily would permit discipline of employees engaging in potentially addictive and disruptive Internet activities, such as online gambling.

What is left might actually enhance productivity or create some good will. Rather than taking an extended lunch break, employees can spend a few minutes on the Web to order clothes or books. Employees who have been grinding during the week can plan a few weekend activities that will provide a much-needed respite from work. In short, the new survey result emphasize the point that the time has arrived for employers to revisit their business-only, workplace Internet policies.

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