Video Surveillance --Catching a Thief Can Come with a Price
 
May 1, 2000
 

Employees’ rights to privacy vary from jurisdiction to jurisdiction based on the applicable state statutes and constitutions. However, identifying factors considered by courts as important may provide guidance for avoiding privacy-related problems in all jurisdictions.

Factual Background – A company, responding to thefts from its nurse manager’s office, installed a security camera concealed behind ceiling tiles. Nine days after its installation, the camera recorded an employee going through a desk. That employee was confronted with the videotape and was terminated from his employment. Although the installers of the security camera claimed ignorance, the nurse manager’s office was used at times for medical treatment. Employees who may have been videotaped during medical treatment sued seeking damages based on a theory of intrusion upon seclusion.

Legal Implications – In Illinois, for example, a question was raised whether the tort of intrusion upon seclusion was legally cognizable. Relying in large part on a privacy provision within the Illinois State Constitution, a federal district court applying Illinois law held that, "although the Illinois Supreme Court might not adopt the tort of intrusion upon seclusion to remedy every type of offensive intrusion in the workplace, this Court finds that the supreme court would, at a minimum, adopt this tort as a potential remedy for an employee who was surreptitiously videotaped by his employer while receiving medical treatment in the workplace." Acuff v. IBP, Inc., (C.D. Ill. 1999).

The district court identified the elements of this tort as:

• "an unauthorized intrusion or prying into the plaintiff’s seclusion
• the intrusion must be offensive or objectionable to a reasonable man
• the matter upon which the intrusion occurs must be private
• the intrusion causes anguish and suffering"

Lessons to Learn

Privacy – Management must be sensitive to situations that implicate privacy concerns, since employees and courts are. Had the underlying issue in Acuff been identified as one involving employee privacy, not just theft detection, the company may have avoided the litigation. Although the surveillance was for a legitimate purpose, the Acuff court quickly disposed of any argument that the surveillance in the nurse manager’s office did not intrude on a private matter. "There are few things in life that are more private than medical treatments and/or examinations." The use of a concealed camera should always command decision-making that gives appropriate consideration to privacy concerns.

Imputed Knowledge – Management must also elicit information from all available company sources before making a decision. In Acuff, the company claimed that the employees involved with the surveillance camera’s installation were unaware that medical treatment was rendered in the nurse manager’s office, and so did not intend to intrude on a private medical examination. However, other employees in the company knew of that office’s use and the court imputed that knowledge to the company as a whole. In other words, courts will act as though the left hand knows what the right hand is doing, even if that is not the case.

Least Indiscriminate Means – The Acuff court recognized that a defense may be available to the company if the surveillance had a lawful and important objective and was implemented by the least indiscriminate means. Therefore, when dealing with issues that implicate privacy concerns, make sure that you accomplish the task in the least intrusive method possible, and be able to demonstrate that.

In sum, it is fundamental that management identify what situations implicate privacy concerns before taking measures which could infringe on those concerns. Once privacy issues are identified, management’s recognition of the legal concepts of "imputed knowledge" and "least indiscriminate means" should aid in responding appropriately.

For more information please contact Peter A. Frazier at 1-888-688-8500 or at pfrazi@hklaw.com.

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