An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

It is important to note that a recent NLRB decision recognized the right of employees to engage in Section 7 activities during non-working hours through the use of an employer’s email system unless special circumstances justify a business use only restriction. 1776 Special circumstances in support of a total ban on non-business emails during non-working hours require a showing that the restriction is necessary to maintain production or discipline. 1777 An employer may also institute controls on the use of non-business emails during non-working hours when the controls are applied uniformly and consistently enforced to the extent they are necessary to maintain production and discipline. 1778 G. V IDEO S URVEILLANCE O F E MPLOYEES A ND S TUDENTS Situations may arise, such as suspected theft or other misconduct, where a school finds it wants to conduct hidden video surveillance of its employees and students. However, schools have to balance their desire to conduct hidden surveillance against the employees’ and students’ right to privacy. The California Supreme Court addressed an employee’s right to privacy in the workplace following an employer’s use of a hidden video surveillance camera in an enclosed office as part of an investigation into possible employee misconduct. 1779 In Hernandez v. Hillsides 1780 , the employer operated a residential facility for abused children. The executive director installed a hidden video camera into an enclosed office shared by two employees after learning that someone was accessing pornography sites from one of the computers after hours. The camera was only operational a few nights after regular working hours and neither of the employees was captured on film. The Court concluded that Hillsides was not liable for an invasion of privacy. It specifically noted that the employer had a strong interest in ensuring that its computers were not being used for viewing pornography because of its obligation to provide a wholesome environment for children, which is likely highly relevant for schools. Nonetheless, the Court pointed out that employers should generally not use video surveillance of an employee’s office without providing “adequate notice to persons within camera ranges that their actions may be viewed and taped.” While the Court’s decision does not necessarily mean that employers must provide details of video surveillance methods used in the workplace, an employee should be placed on express notice that such methods may be used. The same privacy rights that protect employees protect students. Accordingly, a similar analysis would apply to a student invasion of privacy claim. LCW Practice Advisor Labor Code Section 435 prohibits an employer from making any audio or video recording of an employee in a restroom, locker room, or other room designated for changing clothes, unless authorized by a court order.

Schools should also never install audio or video recording devices in student restrooms or locker rooms .

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 400