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Worker Privacy Not Just a Problem for Erin Andrews

October 1, 2009
Related Topics: Technology and the Law, Harassment, Featured Article, Technology
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With the disclosure of personal information now rampant on social networking sites such as Facebook and Twitter, it sometimes seems like privacy is a relic of the past. Don’t be fooled: Privacy is a hot legal topic with serious implications for employers. Let’s start by discussing what happened to ESPN reporter Erin Andrews.

In July, the news broke that Andrews had been filmed nude in her hotel room through a peephole by someone who posted the video on the Internet. ESPN’s general counsel quickly fired off an e-mail to the Web site that displayed the video, demanding its immediate removal and disclosure of its source. The video was removed shortly thereafter, but not before causing a media sensation.

The buzz continued for weeks, with Andrews later calling 911 to complain that she was being harassed by men who had knocked on her door and parked their cars in front of her home in a gated community. Subsequent news reports speculated that the Peeping Tom who videotaped Andrews may actually have been a co-worker, because the posted video appears to be a compilation of several different videos shot at different locations. Andrews and her attorneys have promised civil and criminal prosecution of the perpetrator.

To the casual observer, this incident may seem like just another incident of a TV personality being “overexposed” in the media, but to employment attorneys and human resources professionals, it’s a sexual harassment nightmare. As a sports reporter who covers college football and basketball games and professional baseball games, Andrews is on the job when she travels. And ESPN, like all employers, has a duty to prevent and correct sexual harassment—whether it’s committed by strangers or by co-workers. It was essential for ESPN to take immediate steps to stop the harassment and contain the damage as much as possible, both for Andrews’ sake and to limit the company’s potential liability.

To catch a voyeur
Andrews’ situation was not something employers usually encounter. But what about other situations involving employee privacy? For example, is it ever OK for employers to secretly videotape their (clothed) employees? The California Supreme Court recently said yes. Although the California Constitution has strong privacy protections applicable to public and private actors alike, the court held that in some circumstances, the employer’s business needs may trump an employee’s right to privacy.

In Hernandez v. Hillsides, Inc., two female employees of a 24-hour residential facility for abused and neglected children sued their employer for invasion of privacy after discovering a small video camera and motion detector hidden in their shared office. When the women discovered the video equipment, a red light on the motion detector flashed and the electrical cord attached to the camera was hot to the touch. The women’s office had blinds that could be closed and a door that locked, and one of the women regularly changed into her gym clothes in the office after work to go running. The equipment had been hidden among some plants and a stuffed animal on a bookcase.

The employer had placed the video equipment in the women’s office without notifying them because someone had repeatedly used a computer in that office to access pornographic Web sites late at night. Although the employer did not suspect the female employees, several employees had keys to their office, and Hillsides was concerned that one of the program directors responsible for the abused children who live at the facility was involved. The employer did not tell the women of the surreptitious taping for fear that gossip about the video equipment would alert the perpetrator.

The video camera was activated only at night, and only on three occasions during a three-week period. The camera was never turned on during the day when the women were working in their office.

When the women discovered the camera, the employer apologized, explained why he had not told them about it before, and showed them all of the video footage he had captured. Neither woman appeared on the videotape. (Neither did the perpetrator, so ultimately the secret sting operation was a bust.) Nevertheless, the employees sued Hillsides for invasion of privacy.

The trial court dismissed the women’s lawsuit without a trial, holding that the employer had not violated their right to privacy. An appeals court disagreed and reinstated the case, holding that the employer had intruded into a protected zone of privacy, and the intrusion was so unjustified and offensive that it constituted a violation of their privacy.

A privacy invasion, but not ‘highly offensive’
But the California Supreme Court reversed the appellate court and dismissed the case. It held that the women had a “reasonable expectation of privacy” in their office—specifically, they had a reasonable expectation that their employer would not install video equipment capable of monitoring and recording their activities behind closed doors without their knowledge or consent. However, the court also found that the intrusion on their privacy was not so great as to be “highly offensive” to a reasonable person, because of the limited nature of the invasion and the employer’s reason for doing it.

The court gave great weight to the fact that the surveillance took place only for a limited period, that Hillsides took steps to avoid capturing the female employees on video during the daytime and that the management immediately showed them the video once the equipment was discovered. In addition, there was a legitimate reason for the videotaping: to protect the abused children who lived at the facility from possible further abuse. This reasoning is consistent with the balancing test often used in invasion-of-privacy cases in the state.

Despite dismissing the case, the state Supreme Court expressly discouraged employers from engaging in surveillance, especially if the employees within camera range are not given adequate notice that they may be viewed and recorded. This disclaimer failed to soothe civil libertarians who complained that the decision will give employers permission to spy on employees so long as the employees didn’t know about it.

For legal reasons, employers should diminish employees’ expectations of privacy in their offices, desks, lockers, computers and e-mail accounts. Typically this will take the form of a written policy acknowledged by the employee (in an employee handbook, for example) in which the employees are notified in advance that such areas as desks, lockers, computers and e-mail accounts are not private, and that the company may search or monitor them under certain circumstances. Employers should also be mindful of special statutory protections: For example, some states expressly prohibit videotaping or monitoring of bathrooms, locker rooms and other changing areas.

Web privacy for employees?
Invasions of employee privacy are not limited only to surreptitious videotaping. Spying on private employee Web sites can be a problem too.

In Pietrylo v. Hillstone Restaurant Group, a federal court in New Jersey recently allowed an invasion of privacy case to go to trial over claims arising from managers’ viewing of an employee’s private MySpace page. Employees of the Houston’s restaurant chain had set up a private, invitation-only site called “Spec-Tator” to gripe about their jobs at Houston’s. The site was maintained on an employee’s personal computer and accessed on employees’ own time.

The initial posting on the “Spec-Tator” MySpace page stated that it was to allow employees to “vent about any BS we deal with [at] work without any outside eyes spying in on us. This group is entirely private, and can only be joined by invitation.” According to court papers, the posting went on, “Let the s**t talking begin.” Unsurprisingly, employees used the site to complain about their jobs, their supervisors and so on.

Eventually, a non-management employee who had legitimate access showed the site to a manager. Another manager subsequently asked the employee for her password, which she provided, and other managers also viewed the site. Ultimately the employee who had created the site and another Houston’s employee were fired.

They sued the restaurant for invasion of privacy, wrongful termination, violation of state and federal wiretapping statutes and violation of the federal Stored Communications Act as well as the equivalent state act. The restaurant asked the court to dismiss the case without a trial, but the court refused to do so.

The court held that a trial was required to resolve the disputed fact of whether the employee who gave her password to management had been coerced into doing so. If she had been coerced, the restaurant was not an “authorized user” of the site and was potentially liable for violating the law and invading the other employees’ privacy. The employees argued that management’s request for her private password was inherently coercive under the circumstances of the case. The managers countered that they had merely asked the employee to provide her password without threats or coercion, and she had done so.

Ultimately the case comes down to the degree of pressure (if any) that was exerted on the cooperating employee by the employer. This is not a place you want to be in litigation.

Words to the wise
Three lessons can be drawn from these privacy tales. First, employers must recognize that employees may have privacy rights in and out of the workplace, and that failing to recognize and respect these rights can create or exacerbate legal problems. Second, employers should issue written policies that place employees on notice that their right to privacy in the workplace is limited. Third, employers should tread carefully when issues arise that have privacy concerns. Just because an employer has the capability to videotape or otherwise monitor employees without their knowledge doesn’t mean it’s the best way to solve a particular problem. Sometimes it even creates more problems.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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