| Blog - 2009 blogs |
| Written by Jason Erlich |
In an August 2009 decision, California’s Supreme Court held that an employer may secretly videotape its employee’s workspace without notifying the employees in advance and that this conduct does not invade the employee’s reasonable expectation of privacy. (Hernandez v. Hillsides, Inc. (2009) 97 Cal. Rptr. 3d 274)
The employer, Hillsides Children Center provided residential facilities for neglected and abused children, learned that some of its computers had been used to access pornographic websites during late night and early morning hours. Although the plaintiffs, Abigail Hernandez and Maria-Jose Lopez, were not suspected of the illicit activity, their director set up a hidden camera in plaintiffs’ office. The camera was activated at night when the plaintiffs left work and was turned off before they returned the next day, and the surveillance lasted about three weeks. Notably, no inappropriate conduct was found during the surveillance and no suspect was caught. However when the plaintiffs discovered the hidden camera, they sued Hillsides for invasion of privacy and infliction of emotional distress.
The Court examined the extensive history of workplace privacy issues and prior case decisions which have held that (1) there must be a reasonable expectation of privacy which was invaded by the conduct, and (2) the conduct must be sufficiently serious or offensive as to breach social norms.
Under the facts presented, the Supreme Court first noted that the plaintiffs did have a reasonable expectation of privacy in their workspace even though they shared an office, other employees had frequent access to the office, and that the inside of the office could be viewed from the hallway. Nonetheless, the Court was more attuned to the second prong – that the videotaping was narrowly limited in place, time, and scope, was based on legitimate business concerns, and that the plaintiffs were never actually videotaped during working hours.
Interestingly, the Court did not require that employer use the least intrusive means to curtail the alleged conduct. As noted in the decision, the employer could have stopped the pornographic website viewing by simply requiring all employees to log off of their computers at the end of the day. But, more importantly, the Court did not suddenly open the door for employers to secretly videotape employees: “Nothing we say here is meant to encourage such surveillance measures, particularly in the absence of adequate notice to persons within camera range that their actions may be viewed and taped.”
This decision provides a cautionary tale for both employers and employees. California employers must be very careful in deciding to monitor their employees’ activities where there is no legitimate business need. California employees can still take heart that even in a private place of business they have reasonable expectation of privacy in their workspace and may not be arbitrarily monitored by their employer. |
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| Blog - 2009 blogs |
| Written by Jason Erlich |
In the latest installment of California's fair competition law, an appellate court provided additional guidance about the scope and extent that employees can solicit clients of their former employer.
In the case of The Retirement Group v. Galante, a group of former employees for the Retirement Group (TRG) joined a competing firm and began contacting their former clients some of whom transferred their brokerage accounts. TRG sued the former employees and received an injunction prohibiting the former employees from “directly or indirectly soliciting any current customers to transfer any securities account or relationship . . .” However, a second clause in the injunction stated that the former employees could not use any information which was found “solely and exclusively” on TRG databases. The former employees appealed the injunction as unfairly limiting their right to compete with TRG because in essence they could not contact any brokerage clients without running afoul of the injunction.
Previous cases have established that customer lists could qualify as a trade secret if the employer took appropriate action to meet the trade secret qualification (i.e. the list has independent economic value providing a substantial business advantage, is not generally known to the public, and reasonable steps are taken to protect its confidentiality). However, if the information on the customer list was available from public sources (e.g. business directories) or if the employer had not taken sufficient steps to protect the list (e.g. lists were in employees personal possession), then the customer list was not likely to be considered a trade secret.
Further, a line of cases had found that an employer could prohibit former employees from soliciting clients either through a contractual relationship (e.g. pre-employment non-compete agreements or a severance agreements). Well settled law had held that former employees could announce the opening of a new business or the joining of a new employer, and that it was within fair competition if the clients jumped ship.
Now, under a series of decisions (most notably Arthur Anderson v. Edwards and the current decision) courts seem to be leaning towards a view that former employees can freely contact and even “solicit” clients of their previous employer as long as the source of information is not a trade secret. As the decision noted, “[I]t is not the solicitation of the former employer's customers, but is instead the misuse of trade secret information, that may be enjoined.”
Thus, a word of caution for employers and employees – merely asserting that a customer list is “confidential” or “proprietary” is no longer good enough to prohibit former employees from contacting clients if the employees go on to a competitor. For employers, a careful review of any confidentiality or non-compete agreements is required to ensure that any clauses do not violate the new unfair competition landscape. And for employees, so long as the customer list is not a trade secret, it appears that openly contacting clients is permitted. |
| Blog - 2009 blogs |
| Written by Jason Erlich |
A common dilemma faced by many employees is a variation of this theme: “my supervisor or my co-workers are making my work life miserable. I feel harassed, demeaned and put down all of the time. I don’t think I can continue to work there. Can I just quit?” When confronted with a harassing, unkind, or simply unjust supervisor (or even demeaning co-workers) many employees ask themselves, should I continue to put up with this? Of course, no one should have to work in an environment where their contributions are not credited or where their co-workers make it a drag to go to work every day. Nonetheless, for persons facing a sexually harassing hostile workplace or discriminatory environment, the decision to quit can be complicated and have a dramatic effect on any future lawsuit or claim.
The legal buzzword for quitting your job because of intolerable working conditions is “constructive discharge.” In a constructive discharge scenario, although the employee is the moving party separating the employment relationship, courts have recognized that the employer created or allowed intolerable working conditions which were so serious that the employer effectively terminated the employment relationship. In California, proving that an employee’s decision to quit was in reality a “constructive discharge” is quite a bit more difficult than most people might assume.
Many years ago the California Supreme Court held that a constructive discharge occurs when “the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.” The intolerable conditions must be either unusually aggravated or amount to a continuous pattern of objectionable conduct. Generally a single incident would not be enough to substantiate a constructive discharge violation; however if the conduct is “sufficiently extraordinary and egregious” such that a reasonable employee would not remain on the job to earn a livelihood then a constructive discharge could occur.
In certain situations, lower courts have found intolerable working conditions, for example: a continuous pattern of sexual harassment; a supervisor who continuously yells and screams, threatens to fire the employee, and makes unfair and harsh criticism that remains uncorrected by upper management; or a supervisor’s campaign to fire an employee by frequently reassigning job duties and fabricating documentation. In sum, there must be objective evidence that the conditions were intolerable and that a reasonable person “in the shoes” of the employee would not tolerate the conditions.
The decision to quit your job, especially in tough economic times, can be quite important. So rather than assume that a jury would easily find that your workplace was “intolerable” make sure there is sufficient evidence, history and continuous conduct to support your decision to leave your employer. |
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