Looking Out for Your Employees: Employers' Surreptitious Physical Surveillance of Employees and the Tort of Invasion of Privacy

• Publication year: 2021

85 Nebraska L. Rev. 212. Looking out for Your Employees: Employers' Surreptitious Physical Surveillance of Employees and the Tort of Invasion of Privacy

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Daniel P. O'Gorman(fn*)

Looking out for Your Employees: Employers' Surreptitious Physical Surveillance of Employees and the Tort of Invasion of Privacy

TABLE OF CONTENTS

I. Introduction ....................................................... 213
II. Why an Employer Might Conduct Surreptitious
Physical Surveillance of Employees ................................ 219
III. A Brief History of the Tort of Invasion of Privacy ............... 223
IV. Case Law Involving Employers' Surreptitious Physical
Surveillance of Employees and the Tort of Intrusion ............... 227
A. Intrusion ...................................................... 228
B. Intentional .................................................... 233
C. Intrusion into Solitude or Seclusion of Another, or
His or Her Private Affairs or Concerns ......................... 235
1. Private Activities .......................................... 235
2. Activity Free from Exposure to Defendant .................... 238
a. Lawful-Vantage-Point Concept and
Trespass ................................................. 239
b. Lawful-Vantage-Point Concept and Selective
Disclosure ............................................... 242
c. Lawful-Vantage-Point Concept and Activities
in Public ................................................ 243

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d. Empirical Versus Normative Concept ....................... 244
e. A Limitation on the Lawful-Vantage-Point
Concept................................................... 247
f. Photographs and Vision-Enhancing
Equipment................................................. 248
g. The "Public-Place/Private-Matter"
Exception ................................................ 249
h. Employee Consent ......................................... 251
i. The Lawful-Vantage-Point Concept Stated as
a Rule ................................................... 254
j. Application of the Lawful-Vantage-Point
Concept to Employers' Surreptitious Physical
Surveillance of Employees................................. 255
D. Highly Offensive to a Reasonable Person ........................ 261
E. The Rule Governing Employers' Surreptitious
Physical Surveillance of Employees ............................. 269
V. Should Courts Expand an Employee's Right to be Free
from Surreptitious Physical Surveillance by His or Her
Employer? .......................................................... 269
A. Social Congruence ............................................... 271
1. Moral Norms .................................................. 271
2. Policies...................................................... 274
B. Systemic Consistency ............................................ 279
VI. Conclusion ........................................................ 282

I. INTRODUCTION

Occasionally Charles Jones urinated in his front yard.(fn1) This probably went unnoticed by his only neighbor Jones lived on forty-one acres of land, and the neighbor lived 250 yards away.(fn2) It also probably went unnoticed by distant passerbys. Although a highway and a county road intersected nearby, and his front yard was visible from both roads,(fn3) the speed of drivers (and the fact they would not be focusing on Jones) likely made it difficult for them and their passengers to discern what he was doing.(fn4)

Unfortunately for Jones, his comings and goings (and in particular, his physical activities) became of interest to his employer after he filed a workers' compensation claim.(fn5) His employer hired an investigation

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firm (aptly named "I.C.U. Investigations, Inc.") to watch his daily activities, and an investigator, using a telephoto video camera, videotaped Jones from the shoulder of the highway or the county road near Jones's home.(fn6) Four times the investigator videotaped Jones urinating in his front yard.(fn7) At the end of each day's surveillance, the investigator copied the tapes and sent them to the attorney for Jones's employer.(fn8) When Jones learned he had been videotaped urinating, he filed suit against his employer, the investigation firm, and the investigator, asserting, among other things, a claim based on the tort of invasion of privacy.(fn9) The case went to trial against only the investigation firm, and the jury returned a verdict in Jones's favor for $100,000.(fn10)

The investigation firm appealed the verdict to the Alabama Supreme Court. The case divided the justices six to three, with each of the three dissenting justices writing a separate opinion.(fn11) The majority held that the jury verdict in Jones's favor could not stand. They held that the investigation's purpose was legitimate,(fn12) and that "[b]ecause the activities Jones carried on in his front yard could have been observed by any passerby, . . . any intrusion [by the investigation firm] into Jones's privacy was not `wrongful' and, therefore, was not actionable."(fn13)

A dissenting justice felt that "a videotape of Jones urinating in his yard served no legitimate purpose in [his] workers' compensation case," and "[a]lthough Jones was in his front yard, the matter was clearly personal in nature."(fn14) This justice also felt that "given the distance [of Jones] from the highway, and the layout of his property, a disputed issue existed as to whether Jones's activities were public."(fn15) This justice believed that "a factual issue existed as to whether the means used to videotape Jones was improper, offensive, and unreasonable."(fn16) Another dissenting justice felt that although "the investigator was free to film Jones while he was in his front yard," the investigator still invaded Jones's privacy "because he filmed an act `not exhibited to the public gaze.'"(fn17) The third dissenting justice believed that "the issue of whether telephoto surveillance is offensive or improper enough to constitute invasion of privacy is a jury ques

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tion."(fn18) This justice also felt it noteworthy that "the name of the [investigation firm]--ICU Investigations, Inc.--obviously intends a pun on `I see you' and implies prurient Peeping Tomism."(fn19)

The justices' disagreement was not surprising. The case included many of the classic issues involving the tort of invasion of privacy, such as: In which places does a person have a right of privacy? If a person is in an area that can be viewed by others, does he or she at least have the right to not be photographed or videotaped under certain circumstances? Does it matter that image-enhancing equipment, such as a telephoto lens, is used? Is the purpose of the surveillance relevant?

This Article addresses such issues with respect to employers conducting surreptitious physical surveillance of employees.(fn20) Although such surveillance might, under certain circumstances, be prohibited by any one of a hodgepodge of non-tort sources,(fn21) including the Fourth Amendment to the United States Constitution,(fn22) federal legislation,(fn23) state constitutions,(fn24) state legislation,(fn25) and contract law,(fn26) such

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sources usually do not apply.(fn27) The Fourth Amendment restricts only government actors,(fn28) federal legislation prohibits only surveillance that interferes with employees' self-organizing efforts and activities,(fn29) state constitutional privacy provisions usually restrain only government actors,(fn30) few states have enacted legislation prohibiting surveillance,(fn31) and contract law offers little protection because most employees are employed on an at-will basis without employment con

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tracts prohibiting surveillance.(fn32) Thus, the tort of invasion of privacy "remains the bedrock protection against unwarranted surveillance."(fn33)

In Part II of this Article, I address why an employer might want to conduct surreptitious physical surveillance of its employees. In Part III, I provide a brief history of the tort of invasion of privacy. In Part IV, I review cases involving the tort as applied to employers' surreptitious physical surveillance of employees and distill bright-line rules from such cases.(fn34) In Part V, in response to critics of existing law who seek to expand privacy rights (and, in particular, employee privacy rights), I argue that there are insufficient reasons for judicially modi

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fying the rules currently being applied by the courts with respect to employers' surreptitious physical surveillance of employees.

II. WHY AN EMPLOYER MIGHT CONDUCT SURREPTITIOUS PHYSICAL SURVEILLANCE OF EMPLOYEES

There are many reasons why an employer might conduct surreptitious physical surveillance of its employees.(fn35) For example, an employer might want to monitor employees' work activities for performance issues(fn36) or to help establish efficient manufacturing methods and procedures.(fn37) An employer might want to determine whether employees are stealing(fn38) or violating other company poli

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cies.(fn39) An employer might want to monitor work areas for safety(fn40) or determine whether employees are having clandestine meetings.(fn41) Or, an employer might simply want to find out why the office coffee tastes so bad.(fn42)

An employer might even want to conduct surveillance of an employee's activities outside the workplace. For example, an employer might want to determine whether an employee is disclosing confidential company information,(fn43) or an employer might suspect that an employee on medical leave or who is seeking or receiving workers' compensation or disability benefits, is malingering.(fn44) An employer

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might want to investigate allegations that an employee is using illegal drugs.(fn45)

The expense of defending employment lawsuits is a particularly good reason for employers to conduct surreptitious physical...