Surveillance and Distrust

There is an interesting article at law.com about employers who spy and use surveillance on employees who are on medical leave.

The employers’ main argument boils down to this: many employees abuse medical leave, and surveillance is needed to bust the wrongdoers, some of whom are busted while bowling or otherwise doing highly questionable things while on medical leave.

The employees’ main argument: surveillance of employees is over-intrusive, and just because an employee on medical leave is “caught” doing an everyday task (e.g. mowing the lawn) doesn’t mean the employee is faking a medical condition (e.g. faking the panic attacks that the doctor recommended a week off of work to attend to).

In my own observation, the employers I’ve encountered who conduct surveillance of employees are usually (1) large organizations; (2) conduct surveillance of a LOT of employees (not just those who raise “suspicion” or are tipped off as malingerers); and (3) before getting evidence either way, the employers are over-eager to assume the worst and to “bust” employees.  These employers’ agenda is to distrust first, and then make observations to fit the theory.

This problematic worldview is addressed in the article by employer-side attorney Mark Toth (who authors an excellent employment law blog for Manpower, by the way).  According to Mr. Toth, “It really comes down to: Don’t assume anything… There is more than meets the eye. And if you’re an employer, act once you have the facts, but not before.”

The same is true if you are an employee.  If everything is going fine with your employer (or you have no concrete proof to support suspicions to the contrary), do not mess things up by injecting distrust into the equation.  Do not tape-record your boss just because you can, or just because you think she might be up to something.

Only if your employer has conducted tangible, specific actions to warrant your distrust- e.g. they did not pay you promised wages and are denying they made their prior promises, they make false performance allegations about you a few weeks after you had surgery, etc.- should you consider surveillance as a potential option.  (And even then, you must consider whether the applicable laws in your State permit surveillance).

In my admittedly biased view of the employment law world, employers are highly sophisticated in playing the game, so to speak.  Employers are well-versed in the methods of setting up documentation trails, setting up surveillance, and taking other measures to terminate an employee and reduce the employer’s potential liability.  The problem, to me, is not in these measures themselves.  The problem is in the way these methods are commonly used: they are too often used habitually, arbitrarily, and/or without prior evidence or suspicion to justify their introduction.

In my opinion, the article’s best message for Employers and Employees alike is this: Do not distrust instinctively or easily.

People who truly deserve distrust will make themselves known.  They will have shown you a pattern of specific, tangible behaviors that leave little doubt you have reason to distrust them.  But when you assume that general classes of people should be distrusted (e.g. “Employees will cheat FMLA if given the chance,” or “Corporate HR reps are evil”), your ensuing surveillance efforts are less likely to lead to objective truths, and more likely to distance you from the truth, and from others.