CA Court of Appeal, Employee Right To Privacy

Saturday, July 19, 2003 | 0

The California Court of Appeal (1st District) has decided a case involving workers' compensation exclusive remedy and the constitutional right to privacy. In Operating Engineers v. Johnson (July 3, 2003; 2003 DAR 7415) the Court determined that the worker, Bonita Vinson, could bring a civil action against her supervisor and employer, the County of Alameda, for an invasion of her constitutionally protected right of privacy, notwithstanding the exclusive remedy provisions of workers' compensation.

The court gave an abbreviated set of facts in a portion of the decision not certified for publication. Suffice it to say that there was a dispute concerning whether the employer retaliated against Ms. Vinson for demanding a reclassification of her employment status. According to the complaint, Ms. Vinson was falsely accused in the presence of co-employees for having misused funds and publicly questioned about her commitment to the departmental program. An announcement was allegedly made at a staff meeting about an intent to reprimand Vinson. Numerous employees who had no interest in the matter were at the meeting. The minutes of the meeting, in which the details of the discipline were in bold print, were distributed to an even larger group of employees.

The cause of action alleged that as a result of this invasion of her privacy interests, she was subjected to embarrassment, shame, became the object of ridicule and suffered extreme emotional distress and upset.

The Court acknowledged that it must initially determine whether the alleged injury fell within the scope of workers' compensation, i.e. industrial personal injury or death arising out of, or in the course of employment. If so, it must then analyze whether the acts or motives giving rise to the injury constitute "a risk reasonably encompassed within the compensation bargain." The Court distinguished invasion of privacy from defamation or slander. The latter is an injury to reputation, a "proprietary", as distinct from "physical or mental", injury and cited other cases concluding that slander and defamation do not lie within the purview of workers' compensation.

In contrast, the Court noted, " the gist of a cause of action in a privacy case... [is] a direct wrong of personal character resulting in injury to the feelings.... The right of privacy concerns one's own piece of mind, while the right of freedom from defamation concerns primarily one's reputation." The Court concluded that the type of injury to one's piece of mind is just the sort of personal injury covered by workers' compensation because "the elements of emotional distress damages arising from a breach of privacy are 'anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, anguish, etc.'"

However, Ms. Vinson's claim escaped being confined to workers' compensation because the employer's conduct "stepped out of its proper role". That is, there was conduct of the employer having a "questionable relationship to the employment." This determination is limited, said the Court, to the acts that relate to an element of a cause of action. Where those acts are a normal part of the employment relationship, the cause of action is subject to workers' compensation exclusivity. (The Court noted that in Cole v. Fair Oaks Fire Protection District there had been intentional harassment by a superior which contributed to a stroke. However, the employer's conduct was not considered to be outside the employment bargain.)

The court stated that reprimands undoubtedly are typical employer actions and by themselves do not exempt a cause from exclusivity even when tempers flare and the employer engages in conduct rising to the level of intentional infliction of emotional distress. However, in this case, the dissemination of information to other employees who had no reason to know about it exceeded broadly based and widely accepted community norms of acceptable employer conduct. The jury determined that defendant's conduct was an "egregious breach of the social norms underlying the privacy right."

Interestingly, the Court said, "We acknowledge some discomfort with this conclusion. A disciplined employee may allege the invasion of his or her privacy almost as easily as one may allege the intentional infliction of emotional distress." The consequence is that an employee is entitled to pursue a cause of action for invasion of privacy in superior court but "if the claim is rejected it follows that the matter should never have been in Superior Court in the first place. It is hardly desirable to have the jurisdictional determination dependent on the outcome of the case on its merits." In this case the employer has lost the benefit of the compensation bargain because he would already have been put to the burden of defending a claim that should have been before the WCAB. The Court blamed the California Supreme Court for its steadfast rejection of any "bright line" test.

By attorney David J. Schmit of the Schmit Law Office in Oakland, Ca. David Schmit can be reached at (510) 893-4111, or by e-mail at dschmit@schmitlaw.com.