By Christian J. Scali, Managing Shareholder, Scali Rasmussen California’s proposed SB 1130 raises a practical question for businesses: How should employers respond when employees, customers, vendors or visitors use wearable devices that record audio or video in the workplace? These devices add further complexity to privacy, operational and compliance concerns. Businesses should stay informed as these laws develop and continue to comply with existing California privacy laws. WHAT SB 1130 WOULD DO California’s proposed SB 1130 would expand the California Invasion of Privacy Act to address wearable recording devices such as smart glasses and body-worn technology. As introduced, the bill would prohibit a person from using a wearable recording device to capture sound or video of another person in an area within a place of business where that person has a reasonable expectation of privacy, unless the operator first obtains explicit consent. The bill would also prohibit disabling a light or other indicator showing that the device is recording. Commentary on the proposal further notes that the new provisions would likely fall within CIPA’s private right of action, creating potential exposure to statutory damages of $5,000 per violation. WHY THIS MATTERS FOR BUSINESSES For employers, the issue is broader than whether someone records a conversation. A workplace may include reception areas, retail floors, open offices, conference rooms, HR offices, break rooms, healthcare settings, customer service counters and private offices where sensitive information is regularly discussed, displayed and processed. A wearable device may capture not only what is said, but what can be seen in the surrounding environment. That distinction matters under California privacy law. Courts have repeatedly made clear that privacy is not an all-or-nothing concept. In Sanders v. American Broadcasting Companies, Inc., 20 Cal. 4th 907 (1999), the California Supreme Court held that employees in a nonpublic workplace may still have a limited but legitimate expectation that their interactions will not be secretly videotaped, even if coworkers could have overheard them. In Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009), the Court explained that workplace privacy depends on context, including the nature of the intrusion, the setting and the employee’s reasonable expectations under the circumstances. PUBLIC AREAS VS. SENSITIVE AREAS For businesses, that framework is more useful than a simple “public versus private” label. A retail floor, lobby or reception area is generally more open than an HR office, manager’s office, conference room, treatment room, finance office or other restricted-access area. But even in more public-facing areas, recording can create privacy risk when it captures sensitive information visible in the background. Consider a smart-glasses recording made during an ordinary customer interaction. The device may capture a driver’s license on a desk, payment information on a monitor, another customer’s account discussion nearby, employee records, confidential PRIVACY and Wearable Recording Devices What California Businesses Should Know About SB 1130 16 SAN DIEGO DEALER
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