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Lynne Curry: Employer spies on injured worker

Q. After I got injured at work and filed a workers' compensation claim, my employer began spying on me. A woman at work gave me a call to let me know what was up. After that, I've seen the same man in different locations, most recently when I was leaving the grocery store.

My employer has also demanded access to my Facebook postings. Aren't these actions a gross invasion of personal privacy?

A. Alaska employers need to observe the covenant of good faith and fair dealing in every employee interaction. That doesn't mean workers' compensation claims can't be investigated. According to the National Insurance Crime Bureau, workers' compensation fraud is the country's fastest-growing insurance scam.

Two recent cases relate to the facts you've presented. In Tagouma v. Investigative Consultant Services Inc., an employer's insurer hired an investigator to conduct surveillance on an employee who filed a workers' compensation claim. The investigator filmed Tagouma, a Muslim employee, praying in an Islamic center.

Tagouma sued the investigator and his employer for privacy invasion. Pennsylvania's Superior Court ruled that Tagouma had a reduced privacy expectation because he'd filed a workers' compensation claim. The court also ruled the filming of his praying didn't constitute a privacy invasion because Tagouma was easily visible through the windows of a public building.

The laws in many states, though not yet Alaska, prohibit employers from asking current employees for their social media passwords. Most of these laws, however, grant employers access to their employee's social media when "making a factual determination in the course of conducting investigation" if it relates to perceived "work-related employee misconduct."

In Ramono v. Steelcase, Inc., a state court ordered an employee to give Facebook and MySpace written permission to allow her employer to review her private pages. Ramono had fallen off her chair at work and sued her employer and the chair's maker for her injuries. Although she claimed she was bedridden and confined to her home, her public Facebook and MySpace pages showed her engaging in an active lifestyle and traveling to other states.

Your question makes me wonder what's below the tip of this iceberg. Do you work for an unfeeling employer or have you given the employer reason to doubt the duration of your injuries? If the latter, be careful. If the insurance investigator finds evidence of fraud, you'll have bigger problems.

Q. I recently applied for a job and was hired, pending reference checks. I'd asked my new employer not to check with my current employer until I was hired because I didn't want to lose my former job until I had a new one.

What happened next stunned me. Although I'd received a hiring letter giving me a starting date, my new employer withdrew its offer, saying the reference information worried it too much to have me come aboard.

I never in my life thought I would sue an employer, but I plan to sue both employers and need your recommendation for a good attorney.

A. You need to prepare yourself for the potential the attorneys you call may say you have no case. Your almost-employer said it'd hire you pending reference checks. That gave it an out.

Alaska law, Statute 965.160, provides good-faith protection to employers who give factual, though negative references. Former employees have to prove "clear and convincing evidence" of negligence or bad faith on the part of their former employers to win defamation suits. If your former employer told the truth as it knew it and without malice, it has statutory protection.

This puts applicants and employees in a difficult position if they fear telling their current employer they're looking for a new job and receive a "pending reference checks" offer. Your best defense: Either let your current employer know you're ready for new challenges, or have so many great references from past employers that no matter what soon-to-be-former employer says your prospective employer still feels comfortable it has made the right hiring decision.

Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Company Inc. Send your questions to her at lynne@thegrowthcompany.com. You can follow Lynne on Twitter @lynnecurry10 or through www.workplacecoachblog.com.

 



By LYNNE CURRY