Labor & Employment Law

Using video tapes in disciplinary actions

By Harvey Randall, Esq.

Using video tapes in disciplinary actions

Tran v New Rochelle Hospital Medical Center, App. Div., 1st Dept., 291 A.D.2d 121

The availability of video cameras for employee surveillance is becoming an important issue in terms of employee privacy and the expectations of employees to privacy at the worksite.

In People v Robert Patino, 259 AD2d 502, a Nassau County police officer, was convicted of "disability fraud" after a jury found that he had collected sick leave payments for more than three years while he was able to work.

Patino was charged with sick leave abuse and falsifying his application for Retire­ment and Social Security Law Section 207-c disability benefits. Although Patino claimed that his back injury prevented him from performing even light duty work, it was reported that he was video taped doing a number of physical activities including bending and diving.

The Tran case addressed the issue of when an individual is entitled to have access to such a videotape. The question, as framed by the Appellate Division:

This appeal presents for resolution a deceptively simple question: When, in the pre-trial course of a personal injury action, it appears that the defendant has recorded a surveil­lance of the plaintiff's daily activities with the apparent objective of undermining the latter's disability claim, is the defendant required by law to furnish the plaintiff a copy of the surveillance material prior to the plaintiff's further deposition on this issue?

The hospital refused to provide Tran with copies of the tape, contending that it could result in "tailored" testimony. It argued that Tran was not entitled to see the tapes until after he was deposed.

The First Department agreed with the hospital, noting that "[t]wo of our sister Depart­ments of the Appellate Division, [Rotundi v Massachusetts Mut. Life Ins. Co., 263 AD2d 84, and DiNardo v Koronowski, 252 AD2d 69] as well as the IAS Court, have rejected this argument and directed the opposite course." In any event, it is probable that in the course of a disciplinary action a public employer may seek to use such types as evidence in a disciplinary action.

In DiMichel v South Buffalo Railway Company, 80 NY2d 184, the Court of Appeals set out some guidelines concerning the use of such materials that may suggest its views concerning this issue. Essentially the DiMichel case concerned the proposed use of videotapes that recorded South Buffalo employees engaging in sexual intercourse while they were supposed to be working.

South Buffalo argued that "only by permitting a defendant to spring these films on the plaintiff at trial will the truth-seeking function of cross-examination be safeguarded." DiMichel's attorney argued that "because films are so easily manipulated, they must be disclosed before trial in order to permit counsel to verify the accuracy of the images portrayed." The Court of Appeals ruled that South Buffalo was required to "disclose only those tapes which they planned to use at trial" prior to the hearing.

Additionally, the court said that such videotapes "should be treated as material prepared in anticipation of litigation, and as such, are subject to a qualified privilege that can be overcome only by a factual showing of substantial need and undue hardship." However, it should be remembered that such videotapes may serve as a shield as well as a sword.

If the employer is required only to disclose only that portion of the video it plans to use in the course of the disciplinary hearing or, in the alternative, none of the tape, because it decides not to use any of it in the disciplinary hearing, the employee may argue that he or the employee's defense against the charges.

Full post as published by New York Public Personnel Law on March 06, 2008 (boomark / email).