Say “cheese” when you’re at work – you might be on camera. Employers are increasingly monitoring and recording their employees to ferret out drug use, theft, and goofing off on company time. But some employers are taking workplace surveillance to a whole different level. In recent years, some employers have turned to hidden cameras, two-way mirrors, and even workplace peeping Toms to monitor employee bathroom use. Generally, workplace surveillance is perfectly legal, but even an exhibitionist has the right to privacy in the bathroom. California law thus draws the line at the bathroom door and severely punishes an employer who crosses that line.
The “Reel” Bathroom Wars: Workplace Safety vs. Employee Privacy
Every employee has the right to privacy in the bathroom. Penal Code section 647(3) protects that right by making a defendant guilty of a misdemeanor if (1) he uses a “concealed camcorder, motion picture camera, or photographic camera of any type” (2) to “secretly videotape, film, photograph, or record” (3) another “identifiable person” (4) who might be “in a state of full or partial undress,” (5) to view that person’s body or undergarments, (6) without that person’s knowledge or consent, (7) inside a bedroom, bathroom, changing room, fitting room, dressing room, tanning booth, or other area in which that other person reasonably expects privacy, (8) with the intent to invade that person’s privacy. ((Pen. Code §647(3)(A).))
Even better, Labor Code section 435 prohibits an private or public sector employer (with the exception of the federal government) from causing the making of an audio or video recording of an employee in a restroom, locker room, or changing room, unless the employer has a court order authorizing the making of the recording. ((Lab. Code §435(a).)) The prosecution doesn’t have to prove that the employer concealed the camera, secretly recorded anyone, wanted to view anyone in a state of undress, or intended to invade anyone’s privacy. Section 435 thus relaxes the elements of a criminal invasion of privacy. The trade-off is that an employer who violates Section 435 is only guilty of an infraction. ((Lab. Code §435(c).))
Two-Way Bathroom Mirrors Invade Privacy – No Two Ways About It
If you talk to the mirror in the bathroom, see a psychiatrist. If the mirror in the bathroom talks back, see an attorney. That’s because employers are increasingly using two-way mirrors in the bathroom to see what employees are up to. Fortunately, Penal Code section 653n makes a defendant guilty of a misdemeanor if he installs or maintains any two-way mirror permitting observation of any restroom, toilet, bathroom, washroom, shower, locker room, fitting room, motel room, or hotel room. ((Pen. Code §653n.)) The installation or maintenance of a two-way mirror is “immutably illegal” and violates an employee’s “non-negotiable” right to bathroom privacy – no two ways about it. ((Cramer v. Consolidated Freightways Inc., 255 F. 3d 683, 696 (9th Cir. 2001).))
Employers can’t just remove stalls so they can see what employees are doing back there. California law requires every employer to provide clean, working, and accessible toilet facilities. That means each stall must occupy a “separate compartment…equipped with a door and door latch.” ((GISO §3365.)) The stall door and its walls and/or partitions must also be “sufficient” to ensure privacy. ((Id.)) In other words, the stall door and its walls and/or partitions must be both sufficiently high and low, not one or the other. Thus, an employer who intentionally fails to provide sufficiently high or low stalls and looks over or under the stalls while employees are using the toilets can be liable for invasion of privacy.
But an employer can substitute unpartitioned urinals for stalls if he complies with at least two requirements. First, the number of stalls can’t be less than two-thirds of the legal minimum. ((Id.)) For example, the law requires an employer with 36 to 55 employees to have at least three stalls. ((GISO §3364(a).)) The urinal exception lets him substitute one of those stalls for a urinal. Second, an employer who opts for a trough urinal must ensure that it’s sufficiently long. ((Id.)) Thus, he must have a 72”-long trough if he’d need four or more individual urinals, a 60”-long trough if he’d need three individual urinals, a 36”-48”-long trough if he’d need two individual urinals, and a 24”-long trough if he’d need one individual urinal. ((Id.))