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Employer Surveillance of Employees Outside of the Workplace

Congress enacted the Family and Medical Leave Act ("FMLA"), in order to guarantee employees the right to take unpaid leave so that they may tend to various family issues and to their own personal health. What makes FMLA leave appealing to employees is that after leave is taken, the employer is required to reinstate the employee to her former position.

On the other hand, employers are always seeking to establish and maintain an efficient and productive workplace. By implementing a set of workplace rules, employers can govern the conduct of their employees and in the process ensure their employees remain focused on the task at hand and justifiably earn their wages. With improvements in technology, employer monitoring has increasingly become more sophisticated. Employers are able to monitor every employee at the same time without the employees' knowledge they are being watched. Most employees would not object to cameras being placed openly in their office to prevent theft. What happens when this monitoring is done in order to observe conduct in the workplace? What if surveillance of employees is taken even further, going beyond an employer keeping tabs on its employees at work to the employer hiring a private investigator to trail its employees outside of work?

Employer surveillance of employees outside of the workplace is not only a very touchy issue to confront, but it is also a very confusing legal issue to tackle. This issue is very complicated because it encompasses a variety of legal issues, some of which are not yet settled law. According to a recent Seventh Circuit decision, Vail v. Raybestos, employers are allowed to spy on their employees not only when they are suspicious the employee is taking fraudulent leave under the FMLA, but also in any situation where the information gained by surveillance may be used as evidence to support the employer's honest belief the employee is taking fraudulent leave.

In Vail v. Raybestos, Diana Vail was on FMLA leave due to chronic migraines and was suspected by her employer of lying, Raybestos. Raybestos hired an off duty police officer to monitor Vail's activities while on FMLA leave. The officer observed Vail mowing lawns for her husband's landscaping company. The Seventh Circuit upheld the employer's right to spy on an employee who is suspected of abusing FMLA granted leave. The court held that the employer's surveillance tactics were legal because they were used to supply the employer with an honest suspicion that the employee was using her leave in order to work another job. This ruling has a dramatic impact on employees willing to take FMLA leave from legitimate and legal reasons.

According to the Vail decision, employers are allowed to spy on their employees not only when they are suspicious the employee is taking fraudulent leave, but also in any situation where the information gained by surveillance may be used as evidence to support an honest belief defense. If surveillance is legal for this purpose, then is the surveillance also legal if the employee has a legitimate reason to take leave, or does surveillance in these situations constitute employer retaliation?

Leeds Morelli & Brown, PC is a nationally recognized leader in the area of employment law. Our employment law attorneys are dedicated to resolving issues of employer retaliation and an employee's right to take leave. Our firm has had considerable success in handling matters such as these throughout Long Island and the New York City area. We take great pride not only in providing quality legal service and representation, but also in being there for clients when they need it most.

Tags: labor, leave, surveillance, employer, employee, fmla, employment, business, workplace, family and medical leave act, family issue, working time, business law, labour relations, fmla leave, legal issues, employment law, labour law

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