Wednesday, September 14, 2011

Video Surveillance Technology: An Employer's Shield? Or Sword?

This week a story about workplace violence caught my eye.  More employers are turning to the use of technology--namely video surveillance cameras and similar high-tech security measures--to monitor employees and prevent theft and other kinds of misconduct.  Many employers have relied on this technology to successfully defend against claims of discrimination and wrongful termination when employees are caught on tape violating company policy or stealing.  But this story involves a twist.

In May, pharmacist Jeremy Hoven was working the overnight shift with three other employees at a Walgreens in Benton Harbor, Michigan when two masked gunmen entered the store and held another worker at gunpoint.  Hoven says he tried to call 911, but one of the gunmen jumped the counter and pointed his gun at him. That's when he drew his own gun and fired several times, prompting the gunmen to flee.  Hoven says he obtained a permit to carry a concealed weapon after the same Walgreens was robbed while he was working in 2007, but he failed to notify Walgreens that he was carrying a weapon while at work.  In this case, no one was physcially harmed, the store suffered no cash loss, and the entire scene was caught on the store’s videotape surveillance cameras. 

Hoven sued Walgreens for wrongful termination.  Normally such a lawsuit would involve claims for invasion of a right to privacy or related claims based on the employer's use of video surveillance cameras.  But Hoven is not upset about being caught on tape.  He is relying on the tape as his key piece of evidence and asserting his rights of self-defense.  

Walgreens released a statement defending Hoven’s termination, which reads, “Store employees receive comprehensive training on how to react and respond to a potential robbery situation. Law enforcement strongly advises against confrontation of crime suspects. Compliance is safer than confrontation. Through this practice, we have been able to maintain an exemplary record of safety.”

This story reminded me of many situations where I have advised clients who want to terminate an employee based on surveillance tape evidence. I emphasize consistent enforcement of employment policies as HR “best practice,” but I also recognize that each situation is different.  As an employment lawyer, I understand Walgreens’ position and reasoning, but I also understand why many people are questioning the company’s position after viewing the videotape.

In the end, the use of surveillance technology raises a number of practical and legal considerations.  Employment decisions based on evidence obtained through surveillance technology should be consistent with enforcement of company policy, but also based on sound judgment and reasonableness.  Clear evidence that an employee has violated company policy often supports a decision to terminate, but each situation deserves careful consideration and analysis. 

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