IN THIS ISSUE:
RSVP's Closing Soon:
The Original Best Places to WorK
in southern Nevada (sm)
CONGRATULATIONS TO OUR NOMINATED COMPANIES FOR
Best places to work
In The Mix: A mixer/Vendor Fair Event
November 10, 2009
Sponsor Spotlight:
The New Hard Rock Cafe On the StriP
SNHRA Monthly Meeting
Program Evaluation Comments
PLUS:
The Original Best Places to Work In Southern Nevada (sm) luncheon is rapidly approaching and RSVP's for the event are coming to a close very soon. Follow this link to RSVP today!
Click here to visit vegasbestplacestowork.com to find out more!
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The new Hard Rock Cafe on the Strip will be the co-sponsor of our next amazing Mixer and Vendor Fair event: inTheMix, on November 10th, starting at 5:00 p.m. Please watch for more details and info for exhibitors and attendees on the home page of SNHRA.org over the next week. See you there!
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Most of our Membership knew her infectious smile, her kind and cordial way.
For those of us lucky enough to have known her for many years, we know that
she was deeply connected to the community, to her church, to her children
and to her husband. Denyse was a longtime Administrator for SNHRA who was
also very dedicated to our organization from its early beginnings.
Although her long battle with Leukemia ended her life way earlier than many
of us can bear, we know that her light and her inimitable spirit shines on.
We loved Denyse, as did so many of you, evidenced in the kind emails and
phone calls we've received since Denyse stepped down from her position as
Executive Administrator and, most recently, with the shocking news of her
passing.
We send our love and support to the entire Wortham family in this difficult
time.
Denyse, thank you for your long years of service and for being our friend.
We miss you!
We asked some of our Past Presidents and our Current President to share some thoughts about Denyse...
"As I look back over my life, few people emerge as heroes, probably my first was Roy Rogers of "Roy Rogers and Dale Evans" fame from the cowboy era of the 1950s. Then there's a long dry spell to the early '60s with JFK, and an even longer dry spell to adulthood as few people have really inspired me as I grew older. Five years ago Denyse contracted her illness and we began talking and I realized the emergence of a new hero in my life. The grace with which she handled her illness, the determination to stay healthy for as long as possible for Joe and the kids, and the strength to keep going when it would have been easy to give up are just a few of the traits I admired about Denyse. The cool thing about the time I had with her is that I was able to tell her, on many occasions, that she was my hero and how much admiration I had for her. Sure, it embarrassed her, but I think she was also flattered that I cared enough not only to feel that way but to take the time to let her know as so often we don't share such feelings with others. Denyse was truly my grown-up hero, and I'm so thankful I took the time to tell her."
-Bud Pierce
"Denyse and I became fast friends during my service as President in 2004. It
- Mary Beth Hartleb
"Denyse and I started working together in volunteer positions for the SNHRA board at least two decades ago. Over the years, each of us served the organization in different capacities. Since I first discovered the organization in 1986, there have been many changes - changes in the name (from SNPA to SNHRA), changes in the membership, changes in volunteers, changes in the types of meetings and services we provide to our membership. The one constant we could all count on was Denyse. Regardless of the day, month, year or event, the things we could always rely on to be there when we needed them were Denyse's positive outlook, kind words, contagious laughter, and her dedication to serve the needs of those who counted on her to be there for them. We will miss what she shared with us for so long."
- Carol Herrington |
By: Patrick H. Hicks and Jeanine Navarro. Patrick H. Hicks is the Founding Shareholder of Littler Mendelson’s Las Vegas and Reno offices. He can be reached at phicks@littler.com. Jeanine Navarro is an Associate in Littler Mendelson’s Las Vegas office. She can be reached at jnavarro@littler.com.
In a recent opinion with potentially far-reaching consequences, the California Supreme Court held that an employer acted lawfully when it surreptitiously installed a video camera in a shared office even though both employees had a reasonable expectation of privacy there. While the decision in Hernandez v. Hillsides, Inc., is only binding in California, the court's decision is instructive for employers throughout the United States because the court's analysis is based upon legal principles applicable to invasion-ofprivacy claims in virtually every jurisdiction.
The case arises out of the attempt by Hillsides Children's Center, a residential facility for abused and neglected children, to identify the person who was accessing pornography on two of the facility's computers during late night and early morning hours. Hillsides' computer specialist, Tom Foster, was able to determine that this improper use had occurred at a computer in Hillsides' computer laboratory and at a second computer in the office shared by employees and eventual plaintiffs, Abigail Hernandez and Maria-Jose Lopez. Foster could not discern from system activity records who had accessed the computer.
The porn-viewing concerned Hillsides' director, John Hitchcock, not only because it violated Hillsides' computer use policy but also because many of the facility's residents were children who themselves had been exposed to, or forced to participate in, pornography. Hitchcock did not suspect Hernandez or Lopez, who were not in the facility when the porn-viewing occurred. He suspected other staff members, such as security personnel, who had 24/7 access to the facility.
After trying, but failing, to identify the perpetrator by installing a concealed camera in the computer lab, Hitchcock concealed a video camera and motion detector in the plaintiffs' shared office, pointing the camera at the computer that had been used to access pornography. The motion detector would trigger the camera, which would broadcast images wirelessly to a television monitor and video recorder in a locked storage closet, but only when Hitchcock attached a receiving device to the monitor.
To avoid possibly tipping off the perpetrator, whom he believed to be an insider, Hitchcock strictly limited information about his investigation. Only Hitchcock, Foster and two administrators knew that the video camera had been installed in the plaintiffs' office. Only Hitchcock and one of the administrators had a key to the storage closet that contained the monitor and recorder.
The plaintiffs' office had a door that could be locked and exterior windows with blinds. Several coworkers had a key to the door. The door had a "doggie door," without a flap, through which an observer could peek into the office. Hernandez and Lopez testified that they, nonetheless would change their clothes in the office when the door was closed and the blinds were down and would engage in other private activity.
The plaintiffs discovered the camera three weeks after its installation. During that time period, Hitchcock connected the receiving device only three times and only after the workday. He disconnected it before the workday began. No images of the plaintiffs ever appeared on the monitor, and no images of the plaintiffs ever were recorded. Nonetheless, the plaintiffs rejected Hitchcock's explanations and apologies after they confronted him about the surveillance, and they sued Hillsides for invasion of privacy, among other things.
The California Supreme Court's Decision
Reversing the court of appeal, the California Supreme Court ruled that the trial court had properly granted summary judgment in Hillsides' favor on the plaintiffs' claims for invasion of privacy. The court focused its analysis on the two principal elements of an intrusion-upon-seclusion claim, regardless of whether the claim derives from the common law or from California's Constitutions, i.e., (1) Did the surveillance occur in a place where the plaintiffs reasonably could expect privacy?; and (2) Was the surveillance conducted in a manner that would be highly offensive to a reasonable person?
The Plaintiff's Reasonably Could Expect Privacy in Their Shared Office
The court answered the first question in the affirmative. The court noted that "while privacy expectations may be significantly diminished in the workplace, they are not lacking altogether." In finding the plaintiffs' privacy expectations sufficiently reasonable to support a claim, the court relied on the fact that Hernandez and Lopez could control access to their office by shutting and locking the door and dropping the blinds. The court explained that these features "allow[ed] the occupants to obtain some measure of refuge, to focus on their work, and to escape visual and aural interruptions from other sources, including their employer."
The court rejected Hillsides' arguments that the shared office, the availability of the office key to others, and the ability to peek through the doggy door rendered the plaintiffs' privacy expectations unreasonable. The court reasoned that none of these facts could cause the plaintiffs to "reasonably expect to be the subject of televised spying and secret filming by their employer."
Notably, the court recognized that "notice of and consent to an impending intrusion can inhibit reasonable expectations of privacy" but found that Hillsides could not plausibly argue that Hernandez and Lopez had received notice of, and consented to, the surveillance. In this regard, the court emphasized that Hillsides had kept the investigation secret from the plaintiffs, and "nothing in Hillsides' computer policy mentioned or even alluded to" the possibility of Hillsides' installing surveillance equipment in the plaintiffs' office.
Hillsides' Intrusion Was Not Highly Offensive
Even though the employees could reasonably expect privacy in their office, the court found that the invasion in this case was not so highly offensive and sufficiently serious as to allow liability against the employer. The court explained that "no cause of action will lie for accidental, misguided, or excusable acts of overstepping upon legitimate privacy rights."
The court relied upon several factors in determining that Hillsides' intrusion was excusable. To begin with, Hillsides had a legitimate business justification for its investigation, rooting out a policy violator who could pose a significant risk of liability to the organization. Significantly, Hillsides installed the camera in the plaintiffs' office only after surveillance in the computer lab had failed; the surveillance in the plaintiffs' office focused only on the area where the violator likely could be caught; and Hitchcock connected the receiving device only when the perpetrator might be caught and when the plaintiffs were known to be absent from their office. In addition, Hitchcock told only three other employees about the investigation, and only one other person could access the locked storage closet containing the monitor and any video recordings that might be made. Finally, the court could identify no less intrusive, alternative means for capturing the identity of the perpetrator.
The court noted in conclusion that its opinion is not "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."
Lessons Learned From the Hillsides Decision
Employers need to consider carefully whether a particular office setting is "private" before installing surveillance equipment there. The decision in Hillsides suggests that in many circumstances, an employee will be able to demonstrate a viable privacy expectation simply because his/her office has a door and, to the extent there are exterior facing windows that permit public view, blinds or curtains.
Hillsides suggests that some courts will closely scrutinize any policy upon which an employer relies to defeat an employee's privacy expectations by demonstrating that the employee had notice of, and consented to, the intrusion. In the case of concealed cameras, it may not be enough to include a general warning in an employee handbook or an orientation package. Hillsides arguably supports the conclusion that to rely upon an employee's consent to defeat a privacy-based claim, an employer must provide prior notice of the nature and scope of the specific surveillance in question.
Perhaps most importantly, Hillsides teaches that even when an employer does intrude upon an employee's privacy in the course of a workplace search or investigation, the employer generally will not be subject to liability as long as the search is legitimate, narrowly tailored and tightly controlled. Consequently, employers can reduce their exposure to privacy-based claims arising from a workplace search by using the least intrusive means to achieve the investigation's legitimate business objectives and by sharing knowledge of the investigation and the fruits of the search only with those who legitimately have a need to know.
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Hard Rock International recently opened its newest Hard Rock Cafe Las Vegas location on Saturday, September 5, 2009 in the Showcase Mall development at the heart of the world-famous Las Vegas Strip.
The 42,000-square foot flagship cafe features a 950-seat restaurant, live concert venue and the world’s largest Rock Shop complete with Hard Rock’s limited-edition merchandise. The aesthetic of Hard Rock Cafe Las Vegas follows a design vision which articulates the energy and vibe of the Hard Rock brand.
The new Hard Rock Cafe Las Vegas offers a new and unique memorabilia experience, with hundreds of iconic items commemorating Las Vegas’ rich music history on display, from The Killers’ tour stage backdrop used to promote their album Sam's Town to a collage art bustier worn by Madonna and Spencer Smith’s snare drum played by Panic At The Disco during a Las Vegas benefit concert, to an autographed heart guitar played by Steve Vai and Jim Morrison’s 1968 Las Vegas mug shot.
[Ed. note: See Mixer/Vendor Fair article above...The new Hard Rock Cafe on the Strip will be the amazing venue for our next Mixer and Vendor Fair event: inTheMix, on November 10th, starting at 5:00 p.m. Check out the home page SNHRA.org over the next week for RSVPs and more details. See you there!]
We want to thank those who submit comments and suggestions on the “Program Evaluation” forms at our monthly meetings. Periodically we will address some of the suggestions that have general interest, reflect a frequent sentiment, or propose a noteworthy idea. Following are some recent comments.
Comment/Suggestion:
- “Vary the [meeting] locations!”
Response:
- Due to the need to negotiate costs and to schedule a year or more in advance, it’s necessary to develop a long-term arrangement with a facility that can meet the organization’s needs and budget. While we agree that it would be interesting to vary the locations, logistically that has not been feasible. We do, however, try to provide variety through the “Mixers,” Vendor Fairs, and other activities.
Comment/Suggestion:
- “[Have] Lunch [meetings] more than breakfast – too early, no turnout!”
Response:
- In general, more members and guests are able to accommodate a breakfast meeting, on their way into work, than can leave work to attend a lunch. Still, we plan for three to four lunch meetings per year, along with some evening activities, to be convenient to the widest possible audience.
How to Translate Classified Advertising
These days, prospective employees can read between the lines of your industrial-aged classified advertising copy. Maybe it’s time you changed your ads:
"Just have an eye for detail."
We have no quality control.
"Competitive salary."
We stay competitive by paying less than our competitors.
"Must be deadline oriented."
You’ll be six months behind schedule on your first day.
"Join our fast-paced company."
We have no time to train you and you’ll have to introduce yourself to your co-workers.
"Seeking enthusiastic, fun, hard-working people ..."
... who still live with their parents and won’t mind our internship-level salaries.
"No phone calls please."
We’ve already filled the job; our call for résumés is a legal formality.
"Seeking candidates with a wide variety of experience."
You’ll need to replace the three people who just left the company.
"Problem-solving skills a must."
You’re walking into a company in perpetual chaos.
"Requires team leadership skills."
You’ll have the responsibility of a manager, but not the pay or respect
Top E-mail Addresses of Frustrated HR Professionals.
Ever feel like people should contact you at "copier@paperjam.com " or "appreciatingHR@scienceFiction.com? "
Here are some e-mail addresses that might work well if you need one to describe yourself as an HR specialist.
EmployeeHandbook@Fireplace.com
ChangeManagement@fillthebottledwater.com preemploymenttesting@smallDixiecup.com
appreciatingHR@scienceFiction.com
PalmoliveIsLethal@osha.gov
performanceappraisals@NoRaiseThisYear.com
LongTermEmployee@fortnight.com
managedcare@oxymoron.com
ILikeYourHair@HarassmentSuit.net
soon2Bretired@Fore!.com
GoodIdeaCrushed@budget.com
WorkTeams@interofficedating.com
callinginsick@InterviewWithCompetitor.com
copier@paperJam.com
MotherinlawwithCold@fmla.com
KnowledgeManagement@Solitaire.com
ceo@DoorAlwaysClosed.com
We hope that all of our Members and Friends find the articles contained within R E S O U R C E S useful in your HR environment.
Many thanks to all of you who responded to our requests
for articles and research for this newsletter.
If you have anything you wish to contribute to the next issue, please do not hesitate to email Barry Lippold at blippold@marcison.com.
Contact Barry Lippold at 702-281-6528 for pricing and availability
to sponsor future R E S O U R C E S editions
Newsletter: 2009 Edition 9