Employment Law Report

Beware of Spyware

By Debra H. Dawahare

            Employers are often tempted to learn more than they really want to know about their employees, especially if the employer suspects a fraudulent workers’ compensation claim,  illegal drug use, or other behavior that could affect work performance or reflect poorly on the company. Except in extreme and very well controlled circumstances, employers should avoid conducting surveillance of employees outside work. 

           At least two recent lawsuits have resulted from alleged unlawful home surveillance using webcams.  Though neither arose in an employment context, these cases provide instructive scenarios for employers to avoid—no matter how great the temptation to learn what employees are really up to.

            In the first case, Marisel Garcia of Gainesville, Florida took her laptop to University of Florida student Matthew Feigin for repairs.  After Garcia got the computer back, she realized that its light came on each time she was near it, and its battery life was suspiciously short.  A second computer expert discovered that Feigin had installed spyware in Garcia’s computer, and that thereafter he had been watching her at home by this means.  Feigin, facing felony charges, confessed to putting the spyware in Garcia’s computer, and to similarly victimizing several other women. 

            In the recently filed case of Robbins v Lower Merion School District, the parents of a student at an affluent public school have alleged that the school illegally activated the webcam on their son’s school-issued laptop and spied on the student and his family at home.  According to the complaint, the spying came to light in November 2009, when the student was disciplined for something the school claimed he had done at home.  The lawsuit alleges that a school official advised the student that the school had a webcam photograph to document the activity.  The school insists that it activates webcams only on laptops reported lost or stolen.

            Employers would be well advised to avoid costly civil lawsuits and possible criminal charges by taking measures to insure that office-issued equipment does not intrude upon employees’ after-hours privacy, and that nothing about the monitoring or handling of this equipment could give rise to suspicions of illegal surveillance.  Lawsuits for invasion of privacy, sexual harassment, and intentional infliction of emotional distress are sure to follow any such conduct by an employer.