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Courts Straddle Fence on Privacy in the Workplace

Labor: Rights of employees are often pitted against businesses' concerns for safety, productivity.


Just how far can employers legally go in snooping on their workers?

That question was raised anew by the discovery last week of secret video surveillance cameras in two employee bathrooms at a Consolidated Freightways terminal in the Riverside County community of Mira Loma. For many workers at the big trucking company, it represented a shocking invasion of privacy.

Yet even in California, where the law provides far greater privacy protection than do federal statutes, employers generally enjoy substantial latitude in monitoring workers on company property. "They can go much further than is appropriate in a civilized society," groused Cliff Palefsky, a San Francisco employment lawyer and privacy advocate.

California voters in 1972 approved adding a ground-breaking right to privacy to the state Constitution. Still, Palefsky said, appellate court decisions over the years have narrowed that protection.

All told, California judges today generally decide workplace privacy cases by balancing individuals' rights against employers' interests in maintaining safe and productive workplaces. They also take into account the breadth of the surveillance and whether less intrusive options are available.

Companies are most vulnerable to lawsuits when they or their employees clearly cross the lines of propriety without any legitimate business purpose. For example, J.C. Penney Co. paid an undisclosed settlement to a former manager three years ago who sued after finding out that store guards used a zoom lens on a security camera to look at her chest, and that they also spied on other women through peepholes and a vent in a dressing room.

In the case of Consolidated, the company says it received information that employees were using and selling illegal drugs, along with dealing in stolen merchandise, in two men's bathrooms. According to the most recent statements by the Menlo Park-based company, it installed surveillance cameras around the beginning of the year to investigate the matter.

Surveillance bore out the company's suspicions, said spokesman Michael Brown. Workers were spotted in "theft and drug activities," he said, without offering details. Cameras were focused on open areas of the two restrooms, he added, and were not aimed at the urinals or toilet stalls.

The Riverside County District Attorney's office currently is reviewing the case, but the company probably doesn't have much to fear from the justice system. The laws that Consolidated appears most likely to have violated--including one prohibiting the use of two-way mirrors in bathrooms, fitting rooms and hotel rooms, and another against violating individuals' "reasonable expectations" of privacy--are only misdemeanors.

Workers, however, are considering a civil invasion of privacy lawsuit in hopes of winning damages. Also, the Teamsters union, which represents non-management workers at the 600-employee Mira Loma terminal, is meeting with members today to go over legal options.

Management consultants contend that, in many cases, video surveillance can effectively deter crime on the job--if workers are warned of the surveillance in advance. In fact, sometimes just the fear of being watched stops would-be lawbreakers, said Lawrence Fineran, a spokesman with the National Assn. of Manufacturers who tracks privacy issues.

"Sometimes you don't even need film in the cameras," he said.

But in other cases, Fineran said, trucking companies such as Consolidated and other employers in safety-sensitive industries that suspect illegal drug use can't afford to alert possible wrongdoers about surveillance. He said if Consolidated was aware that some of its drivers were taking drugs but didn't take action to get them off the road before one of them got into an accident, the company could wind up the "deep pocket" in a lawsuit.

At times, Fineran said, "you want to catch bad apples."


Stuart Silverstein can be reached by phone at (213) 237-7887 or by e-mail at


On-the-Job Surveillance

A survey of 906 employers found that 35.3% conduct one or more types of close electronic surveillance on their workers. When other, less invasive kinds of electronic monitoring are taken into account, the figure rises to 63.4%.

Surveillance activity / Percentage of firms conducting it

Videotape employee performance: 15.7%

Review electronic mail: 14.9%

Tape employee telephone conversations:10.4%

Review voicemail: 5.2%

Note: Among employers conducting employee surveillance, 15.9% say that in some cases they do not inform employees.

Sources: American Management Assn., Employment Testing: Law & Policy Reporter

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