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Reality Bites: Know the Law Before Using That Hidden Camera

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations

During the holiday break, I did what many lawyers do (but will publicly deny): I watched a few ”bad” reality tv shows.  

No, I didn’t watch “Here Comes Honey Boo-boo” (even I have my limits). 

But on the Food Network was a marathon of episodes of a show called “Mystery Diners”.   The show is based around so-called “Mystery Diners” who are undercover operatives that go into restaurants, bars and food service establishments with hidden cameras to perform surveillance to “find out what’s really going on when the boss isn’t around.”  

Clearly, it was time to break out the popcorn over this show. 

The episode that I flipped on didn’t disappoint, mixing employment law issues with food.  (I’ll leave it to you in the comments to decide if there is any better combination).  Here’s the way the show describes the episode:

Los Angeles restaurant owner Derrick has a problem with an employee who claims he hurt his leg on the job. This former waiter has threatened a [workers compensation] lawsuit, so to appease him, Derrick has made him a host; however, his lazy behavior has not stopped … and Derrick wonders whether the injury is even legitimate. Derrick contacts Charles for help, and Mystery Diners Shellene, Lukas and Tracey go undercover to see if this coasting host needs to be toast.  

Suffice to say that my time watching the show would probably have been better spent on nearly anything else, but I couldn’t help but think how some restaurant owners might be tempted to go through something similar. 

So, if you’re a restaurant owner in Connecticut and thinking about going on a reality show like this, let me suggest two things:

1) This is a spectacularly bad idea.

2) If you aren’t convinced that this is a bad idea, at least hire a lawyer to tell you this is a bad idea. 

There are a number of laws that may be implicated in this type of reality show “sting”.  First off, Connecticut law restricts employers from conducting surveillance, as I’ve noted before.  Connecticut law also restricts employers from conducting electronic monitoring — absent notice (which I’ve also covered here before). 

That’s not to say that you ought to do nothing when confronted with a similar situation; employees who abuse workers compensation are sometimes put under surveillance by the insurance company to determine the legitimacy of an injury.  But that is typically done by trained professionals; not television producers in search of viewers.

In addition, just because an employee has threatened a lawsuit, it does not mean that they are immune from discipline. But that discipline needs to be done carefully; otherwise, a retaliation lawsuit will be on your menu.

And keeping counsel involved, allows you, as the employer, to have privileged conversations with the attorney about legal strategy too.

So, reality television may make for good holiday watching.  But leave the hidden camera tricks for someone else.

  • Suzanne Lucas

    I’m so sad I missed that show. 

    Although I did watch 2 episodes of Honey Boo Boo. I may never get those brain cells back. 

    Great advice. I am a strong believer of keeping the lawyers involved.

    • schwarda

      Truth me told, I did catch about 3 minutes of Honey Boo Boo and lost more brain cells that I can to imagine.  The food network is one channel up….

  • Jay Wolman

    Yes, but there is the exception that surveillance may be had without notice where there are reasonable grounds to believe the employee is violating the law.  Here, the employee may have been committing insurance fraud if he was receiving workers’ compensation payments for medical treatments related to the alleged injury, a class B felony in CT.  What bothered me more was the suggestion of a lawsuit–most states, including CT, adopted the grand bargain that an injured employee would receive no-fault workers’ compensation in exchange for a prohibition on civil actions against a negligent employer.

    • schwarda

      Yes, it’s a point I made in earlier posts that I linked too.  Of course the reality show simplified things but the employer seemed hell-bent on showing that the employee was “faking” his injury — not something an employer should be so vocal about, particularly on national TV.