California employers can monitor the workplace, and most monitoring never becomes a lawsuit. The Supreme Court of California has said that “while privacy expectations may be significantly diminished in the workplace, they are not lacking altogether,” in Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272. A privacy claim needs more than an intrusion. The employee must also show the intrusion was highly offensive, and the employer’s reasons count heavily in that judgment.
What does an employee have to prove in a workplace privacy claim?
Two things: an intrusion into a reasonable expectation of privacy, and an intrusion serious and offensive enough to be actionable.
Employees usually plead both the common law intrusion tort and the privacy right in the California Constitution. The Hernandez court explained that the common law tort requires an intentional intrusion “into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy,” and that “the intrusion must occur in a manner highly offensive to a reasonable person.” Treating the two claims together, the court said it would consider “(1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests.”
The second element is where employers win. Citing its earlier decision in Hill v. National Collegiate Athletic Assn., the court called offensiveness an indispensable part of the analysis. No community could function if every intrusion into private life supported a lawsuit, and the offensiveness element is how courts screen out the ones that shouldn’t.
Where do employees have a reasonable expectation of privacy at work?
It depends on the space. Open work areas get little protection, and enclosed or personal spaces get much more.
The Supreme Court described a spectrum. At one end are “settings in which work or business is conducted in an open and accessible space,” in view of coworkers and the public. At the other are “areas in the workplace subject to restricted access and limited view, and reserved exclusively for performing bodily functions or other inherently personal acts.”
The Legislature has drawn a hard line at the far end. Labor Code section 435 provides that “No employer may cause an audio or video recording to be made of an employee in a restroom, locker room, or room designated by an employer for changing clothes, unless authorized by court order.” A recording made in violation of the statute can’t be used “for any purpose.” No business reason justifies a camera in those rooms.
Most monitoring falls somewhere in between, and a private office shared by two employees is a good example. In Hernandez, two clerical employees worked in an office with a door that locked and blinds on the windows. Several administrators and security staff had keys. The court still held a jury could find they “had a reasonable expectation under widely held social norms that their employer would not install video equipment capable of monitoring and recording their activities” behind closed doors without their knowledge.
Does a computer monitoring policy defeat a privacy claim?
It helps a lot for what it covers. It doesn’t cover monitoring the policy never mentioned.
The employer in Hernandez had a written computer policy warning employees that they had “no reasonable expectation of privacy in any . . . use of Company computers, network and system.” The policy said the company could monitor web sites accessed, and the employees knew it. That policy is why the company’s network tracking, which flagged late-night visits to pornographic sites from one of their computers, wasn’t the problem.
The camera was. The court held that a policy about monitoring “by means within the computer system itself” was “distinguishable from and does not necessarily create a social norm” that the company would put a camera inside their office. Employers should read that as a drafting lesson. A monitoring policy protects the monitoring it describes. If the company uses cameras or GPS tracking on company vehicles, the policy should say so in plain terms, and employees should acknowledge it in writing.
How did the employer win Hernandez?
By showing the surveillance was narrow and aimed at a real problem. The court held as a matter of law that it wasn’t highly offensive.
The facility’s director learned that someone was using a computer in the plaintiffs’ office late at night to view pornography, at a residential center for abused children. He suspected a staff member with night access, not the plaintiffs. He tried a camera in the computer lab first, then moved it to the office and activated it only after the plaintiffs had gone home, on three occasions. The plaintiffs were never recorded. When they found the camera, he explained it and “showed them the actual surveillance tape on demand and without delay,” according to the opinion.
The court concluded that “defendants’ conduct was not highly offensive for purposes of establishing a tortious intrusion into private matters,” and it reinstated summary judgment for the employer. It also rejected the argument that the employer had to prove no gentler option existed, holding that “defendants are not required to prove that there were no less intrusive means” of accomplishing their legitimate objectives.
The lesson for employers isn’t that hidden cameras are fine. The defense won because every fact about scope and motive pointed the same way. An employer that installs a camera on a hunch and leaves it running for months will face a very different record. The firm’s post on workplace investigations of harassment complaints covers how to document the reason for an investigation before it starts, which is the same record a privacy defense needs.
| Monitoring practice | Privacy risk | Why |
|---|---|---|
| Cameras covering open work areas, sales floors, or warehouses | Low | Employees work in view of coworkers and the public |
| Monitoring company computers and email under a written, acknowledged policy | Lower | Employees are on notice of what is monitored |
| A hidden camera in an enclosed office | A jury may find an intrusion, and liability depends on scope and motive | Hernandez v. Hillsides |
| Short, targeted surveillance to identify a specific wrongdoer | Defensible | Hernandez held it not highly offensive as a matter of law |
| Any audio or video recording in a restroom, locker room, or changing room | Prohibited without a court order | Labor Code § 435 |
What to do when an employee claims the company invaded their privacy
- Preserve the surveillance records under a litigation hold: the footage or logs themselves, the dates the equipment was installed and active, who had access, and every version of the monitoring and computer use policies.
- Calendar the response date on the demand or complaint, and check for an arbitration agreement and an employment practices liability (EPLI) policy with notice requirements.
- Identify who decided to begin the monitoring and why, and make sure no one takes further action against the employee that could look like retaliation for the complaint.
- Pull the documents the defense depends on: the signed policy acknowledgments, the problem that prompted the monitoring, and how narrowly the monitoring was set up and limited in time.
- Talk to a lawyer before deleting any footage, removing equipment, or contacting the employee or the employee’s lawyer about the claim.
Privacy claims rarely arrive alone. They usually come attached to a wrongful termination or retaliation case, and the surveillance becomes evidence in both. Handling them as part of defense of workplace privacy claims against California employers means building one record on why the monitoring happened, instead of two inconsistent ones. The firm’s post on wrongful termination claims covers the case these claims tend to ride with.
FAQ
Can a California employer use cameras without telling employees?
In open work areas, cameras are common and rarely support a privacy claim. Hidden cameras in enclosed offices are riskier, because employees may reasonably expect not to be recorded there, though Hernandez shows a narrow, justified use can still be defended. Recording in restrooms, locker rooms, and changing rooms is prohibited by Labor Code section 435 without a court order, whatever the reason.
Does our computer use policy protect us from privacy claims?
It protects the monitoring it describes. In Hernandez, a policy warning employees about network monitoring meant the company’s tracking of web sites wasn’t the problem, but the court held that policy didn’t put employees on notice of a camera in their office. A policy should name each type of monitoring the company actually uses and be acknowledged in writing.
Does the employer have to use the least intrusive method of monitoring?
No. Hernandez held that the employer wasn’t required to prove there were no less intrusive means of accomplishing its legitimate objectives. Less intrusive alternatives still matter as evidence, though, because a court weighing offensiveness looks at the employer’s reasons and how narrowly it acted. Monitoring that goes far beyond what the problem required is harder to defend.
If your company faces an employee privacy claim
If your company has received a demand letter or lawsuit claiming workplace surveillance invaded an employee’s privacy, the monitoring policy and the reason the monitoring began usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving workplace monitoring and employee privacy. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The case is Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, which discusses Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1. The statute is Labor Code section 435.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.