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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