An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

Sanders v. American Broadcasting Companies, Inc. 1781 The California Supreme Court upheld a damage award against ABC news after one of its reporters went undercover as an employee and videotaped private conversations between co-workers. The video was later shown on ABC and an employee sued. The Court held that the employee had an expectation that his comments would not be made public, even though the comments were made in a setting in which other employees could hear the comments.

The manner of surveillance and the area under surveillance may also play a role in determining whether a privacy interest is invoked in the workplace. As a result, employers are advised to consult with legal counsel to review their video surveillance procedures and policies in the workplace. In addition, an employer cannot simply install security cameras without providing notice and an opportunity, when applicable, for the relevant employee associations to bargain and negotiate the effects of a decision to install security cameras. 1782 This is the case regardless of whether the cameras are overt or covert and whether the cameras are installed in public or private portions of the premises. 1783 Ops.Cal. Atty Gen No. 12-1101 The California Attorney General has issued an opinion that continuous videotaping surveillance of commercial drivers did not constitute a misdemeanor under Labor Code section 1051, which prohibits requiring employees to be photographed as a condition of employment under certain conditions, when the video file is inspected by a third party who is an agent of the driver’s employer and the videotape surveillance is for the sole benefit of the driver’s employer. 1784

Schools should provide a notice and an acknowledgment form, separate from the employee or student handbook or agreement, providing notice that video surveillance may be used on school grounds.

LCW Practice Advisor

H. No Camera Or Recording Policies Policies restricting an employee’s ability to take video or recordings in the workplace during working time are likely permissible if they are not applied in a manner that targets protected activity. In the National Labor Relations Board (“NLRB”) decision Whole Foods Market, Inc. 1785 , the Board prohibited a market from having a “no-recording” rule that prohibited employees audio and/or video recordings in company meetings without prior approval and also prohibited recording conversations with a tape recorder or other recording device unless the employee received prior approval from store or facility leadership.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 401