APPROPRIATE USE OF VIDEO

SURVEILLANCE IN THE WORKPLACE

As an employer, you may suspect that an employee has stolen money or inventory from your company, or is otherwise slacking off on the job.  You may have entertained the notion of installing video surveillance in order to better protect your interests, but aren't sure about the legal ramifications.  A few simple precautionary steps may insulate an employer from an employee's right to privacy action.  It is advisable to install hidden cameras only after informing employees that they may be subject to such monitoring; installing cameras in plain view in open public spaces does not invade an employee's reasonable expectation of privacy.  Indeed, posting a sign that reads:  "THIS AREA IS SUBJECT TO VIDEO MONITORING.  YOU DO NOT HAVE A REASONABLE EXPECTATION OF PRIVACY," in the areas that are subject to video surveillance will minimize or even eliminate any risk of liability for invasion of privacy.

SEXUAL STEREOTYPING MAY BE

EVIDENCE OF DISCRIMINATION

In a recent federal case, the plaintiff claimed she was denied tenure because of a perceived lack of commitment to her job.  In support of her claim, the plaintiff alleged that the employer repeatedly questioned whether she could perform her job duties and maintain her required work hours with "little ones" at home and also questioned whether her commitment to her job would change once she received tenure.  The Second Circuit of the U.S. Court of Appeals ruled that comments made about a woman's apparent inability to combine work and motherhood constituted direct evidence of a gender-based discrimination.  This case should remind employers that sex-based stereotyping is not limited to assumptions based upon a woman's physical appearance.

TERMINATIONS FOR TRASH

TALK DEEMED NOT RETALIATION

When circumstances provide a problem employee with protection, for example, if an employee has made a request for leave under the Family and Medical Leave Act (FMLA), employers are sometimes reluctant to terminate that employee, even for legitimate reasons, for fear of being accused of retaliation.  However, there is recent case law suggesting that a protected employee may properly be terminated for outrageous behavior, such as pervasive "trash talk", without the employer being liable for retaliation.  When an employee has engaged in a protected activity, an employer must approach any termination or other disciplinary decision with great care.  The employee can easily claim that any adverse action taken by the employer was retaliation for the protected activity and that the stated legitimate reason was merely a pretext.  Employers must be careful to ensure that employees who engaged in similar conduct in the past were disciplined in the like manner.  While good judgment dictates that caution must always be exercised, recent case law does provide employers with encouragement that courts will recognize that the legitimate need to run a business includes allowing employers, without recrimination, to remove protected employees who engage in offense and outrageous behavior.

By:       Nicholas L. Mineo