Employment Law and Drone Surveillance, What We Have to Look Forward To, A Work of Fiction

By Bob Goodman, Esquire, Kilgore & Kilgore PLLC

It was easier before the Supreme Court reconsidered its 2015 decision that drone surveillance by private employers of their employees was not illegal because it was not governmental. Now, in 2018, according to the Supreme Court, there had to be some reason to believe an employee was doing something against the employer’s interest to justify drone surveillance of that employee. That was a low standard, about as far from probable cause as you could get, but it still required a form to be filled out for any drone surveillance, even if it only involved the employee’s office or cubicle, and not also following the employee around all day and into his home.

The heaviest requirements were, in fact, imposed when a drone to follow the employee home was at issue. The Supreme Court had imposed a “zone of privacy” on what happened in an employee’s home over the dissent of all of its conservative justices, but the line was still not clear; in order to follow an employee home, the test was that there had to be some reason to believe the employee was doing something against the employer’s interest not only at the workplace, but outside it. If strictly interpreted, that would unfortunately mean that some of the most riotous and interesting video and audio from dining rooms and bedrooms of employees would no longer be usable even if it was . . . inadvertently. . . collected from time to time. But this was not yet a time for strict interpretation.

Even so, this case was the toughest one that had been presented. A female employee had been complaining about sexual harassment by one of the executives, and he denied it, but the initial drone surveillance showed that she was visiting a psychiatrist every week about something. Even before the Supreme Court decision, the attorneys said you could not have a drone go into a session between an employee and his or her psychiatrist, even if there was no such rule for workers compensation claimants visiting their physicians. As it was, somebody from the employee health department always went with claimants to those visits and stayed with the patient and as yet no employee-claimant had complained.

In this case, the visits to the psychiatrist were actually getting more frequent even while the executive continued to deny any harassment of the employee. He would not approve, however, drone surveillance of the employee in the executive suites where he worked. Something about trade secrets and drone surveillance data not being secure in the cloud. The drone could only go to the reception area in the executive suite and had to stop there. Fortunately, there was a recharging station at that location where the drone could freshen its batteries, which actually avoided having to use the recharging stations in the employee’s work area. The recharging stations outside the executive suite were generally two to a building, meaning that at least one hour per day drone surveillance had to be interrupted for recharging. This was a problem that hopefully would be solved by improved batteries or even by somehow providing for recharging at employees’ home at night without them knowing.

The fear was, obviously, that the employee was telling the truth about the executive. It looked like the highest level authorization from the chairman of the board was necessary to override the no-executive suite drone surveillance rule. This was actually the first time an exception to that rule had been considered. The chairman was one of the big backers of the United States Chamber of Commerce effort to have the Supreme Court not reconsider its 2015 decision allowing all surveillance, which would suggest that he would have no compunction to override the usual no-executive suite rule, but he was also a known fan of the executive, grooming him to be president. An appeal needed to be made to the chairman that took into account all of the problems the company faced in dealing with a harassment case like this one. Since there was no prohibition on the use of drones outside the executive suite, drone surveillance had been unrestricted in most harassment cases and actually had helped avoid exposure in a number of instances where video surveillance of employees revealed that they had been mistaken about the details of incidents they claimed occurred. It was enough to show that an encounter was only 5 minutes when the employee said it was 10 minutes to destroy the employee’s credibility. On the whole, drone surveillance had been a great thing for employers in defending against wrongful termination, harassment and other employment claims. That’s why the new Supreme Court decision was so disturbing; it threatened to turn the clock back to the old days, and the risk that limitations on use of drones at work would actually be increased was extremely threatening.

The major law firms representing employers had themselves suffered a crisis of conscience about the whole drone issue. Some firms found it impossible to advise clients to use drones, while others had no problem or found a way to overcome their reluctance. Firms which could not rationalize advising the use of drones started losing business because it was so much better for employers to be able to know literally everything about their employees’ lives in order to defend claims against themselves. It was probably too late for some of the firms who had lost most of their large corporate business to regroup and come back even after the 2018 decision. Some of the lawyers who found themselves conscientious objectors even switched to the plaintiff’s side. They were overjoyed by the new Supreme Court decision because they thought they could now tie employers in knots. They had special insight into the way employers thought, and could take advantage of that in the discovery process and sanction practice if the employers did not turn over all drone surveillance, not just what the employer believe inculpatory. The law even before 2015 had been that all drone surveillance had to be produced to an employee and his or her lawyer, but with its 2018 decision, the Supreme Court reemphasized that there may be serious sanctions if there was selective production. Before that, there had been a split among the circuits, with many courts only paying lip service to the notion of the requirement of comprehensive production. A lot of times, even a part of a production was so huge that an employee’s lawyer did not have a realistic opportunity to view all of it, much less to realize it was only a selective portion of what might have been the complete drone surveillance data file.

In order to convince the chairman that the no-executive suite rule should be overcome in this one instance, the argument needed to be made that this was not a precedent likely to recur. However, in fact, the no-executive suite rule had emboldened several of the executives to engage in conduct that was not only challenged in this case, but in others. Fortunately, the other employees had been surveilled in the most productive way; there had been embarrassing snippets of video and audio from the surveillance which, described or shown to them, had them put tail between legs so that they promised not to proceed or accept minimal amounts in settlement of potential large claims. This employee, however, seemed to be a goody two shoes from all of the surveillance collected to date. It did appear that she was really hurting, not only based on the repeat psychiatrist visits, but surveillance of her at work and at home on days she was forced to deal with the executive in his office showed her crying inconsolably. There was also a video of her at home speaking with somebody and describing harassment by the executive in a way which seemed to convey frank sexual harassment and real hurt.

The only way that it seemed possible to convince the chairman to allow for video of the executive was to promise him that some effort would be made to set up the employee on further drone surveillance in the hope that she might do something which could then be used against her to have her come to the same conclusion as the other employees who had complained about sexual harassment by executives. That was not a pretty compromise, but the fear was that if there was no drone supervision of executives, in the next case that came along, the disparate treatment of executives compared to everybody else would be viewed very favorably by a jury to the point that the jury would go for the employee without regard to what the other facts were.

The chairman went for it, as reluctant as he was to make an exception to the no-executive suite rule. He was very reluctant to make the exception because it could be used in a later case to apply to him and threatened to destroy the career of his protégé. Even then, he made an exception to the exception. He said the drone could not go into the executive restroom. That seemed to be a reasonable limitation, although no similar exception applied to non-executives, despite arguments in the Supreme Court for such a specific privacy exception generally.

The chairman made some suggestions, moreover, about how to try to set the employee up. His best suggestion was to try to tempt the employee with money to do something she would not otherwise have done, something dishonest. He suggested she be told that if she could find out about a competitor’s schedule for a meeting with a specific potential client, so that the march could be stolen on the competitor, she would earn a special bonus. That required her to hack a competitor’s website, at worst, or at least talk to one of her friends with a competitor and try to get the information deceptively.

That approach was tried. However, she did not take the bait. She actually approached the identified competitor and told them what she had been asked to do. That could not support her being fired, of course, because to do so would potentially reveal the set up. She did not know the request related to the drone surveillance issue, but just thought it was a half-baked suggestion by her immediate superior.

What the employee did know is that the Supreme Court drone surveillance decision was important, and she read in the papers that the chairman was involved in the attempt to keep the old rule on drone survelliance alive. On a Saturday after she read about the Supreme Court decision, she came to the office alone for the quiet, and noticed that there was a humming in her office which she could not get rid of. She concluded that it must be a drone, one of the new models no bigger than a gnat. She asked for a meeting with the chairman, purportedly to report on the progress of one of his pet projects – and he did not refuse, perhaps wanting to see what the other executive saw in her – but she took precautions to assure that she left his office without the drone following her. She hoped it would follow the chairman. She learned how to make that happen on a website, and the method, making sure that the drone was near her when she took his hand so as to force the drone to touch him and treat him as its new target, was not foolproof, but it worked. The drone followed the chairman the next day and video was created showing the checking back with the human resources representative and asking her whether the set up of the employee had worked. This surveillance of the chairman came up in the random review of drone surveillance data conducted every week, and one brave in-house lawyer risked his job by going to outside board members. They were too afraid of becoming drone surveillance victims themselves not to confront the chairman because their own firms, without a chairman who thought drone surveillance was a great idea, made no exception for executives even if they used drone surveillance.

The chairman never shook hands with a beautiful woman again.

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If you are an employee and think you have a claim against an employer for sexual harassment or another employment law matter, feel free to contact Bess Masterson at DEM@kilgorelaw.com for more information or call (866) 496-0136.