Smile, you're on video

It isn't only suspicious spouses who hire private investigators - employers do too. But unlike marital infidelity, people placed under surveillance by their employers are usually suspected of illegal activity - commonly petty theft, serious fraud and drug use; crimes that are often related.

Murray Hills, director of Prime Security which sells and installs surveillance equipment including cameras and closed circuit TVs, says 99.9 per cent of employers buy surveillance equipment when they can't get the till to balance or an amount of money has disappeared that can't be accounted for in sales.

"So they put a camera above the till. If they have documented evidence of money going missing, they don't have to tell the [suspected] employee the camera is there," says Hills.

He says there are many ways employees steal from employers including only pretending to scan a friend's item at a supermarket checkout, and "sweethearting", a term used to describe coding an item sold to a friend as a different item altogether - so the retail software records a sale of $15 when the item is actually worth $200. Hills says some businesses need employee surveillance more than others; these include those where the owner is absent and a manager is in charge; where cash is directly handled; and in industries that employ transient or seasonal workers who lack employer loyalty and a conscience.

"Temporary employees can be quite opportunistic thieves and move through the country; the tourist industry gets hit a bit," says Hills. Although camera evidence can be used in a court case, Hills says it usually isn't necessary - when people are confronted with video evidence of their crimes they typically confess.

But while there are strict legal guidelines around the use of cameras and listening devices in the workplace, why would an employer risk upsetting employees by exposing them to workplace surveillance and private investigation in the first place? How much damage to an employment brand can be caused if employees find workplace surveillance invasive, insulting or stressful?

Mark Ryan, a senior solicitor for the employment law team at Haigh Lyon, says employee perceptions, and reactions, to video surveillance and private investigation depend on the industry the person works in, their role, and any perceived benefits of surveillance.

For example, a table dealer at a casino or a teller at a bank expects that they and their work area will be under surveillance for their own protection - if cash or chips go missing, the video footage will prove they weren't the culprit. Similarly, a jockey or professional athlete will allow their body to be monitored, accepting that a urine sample is a necessary, if unpleasant requirement of their employment.

Anecdotal evidence suggests many employees are comfortable having their online access monitored by an employer and some even find it a relief to have access to certain web sites restricted.

However, Ryan says if a law firm was to put video surveillance into its office "without an obvious and specific reason" then questions around loyalty and trust would likely arise between employer and employee.

"A lot of surveillance is understandable but if it is in an inappropriate workplace and without an obvious reason then eyebrows would be raised; [employees] would feel they weren't trusted," says Ryan

Some employee monitoring occurs for the sole purpose of improving the efficiency of a business - internationally, some employers use the personal cell phones of employee as "swipe devices" for access to secure areas; and New Zealand freight forwarding company Fliway has employees log their working hours by 'punching in' a thumbprint for identification instead of a timecard. (According to Fliway, employees like the thumbprint because it results in more accurate payroll records and so fewer pay errors.)

This, suggests employers, can avoid appearing invasive if they explain their reasons for any surveillance and, even better, if there is an obvious and personal benefit for the employee.

In some cases that benefit may be personal safety. Daniel Thompson, director for private investigation firm Auckland Investigations, says use of the drug methamphetamine or 'P' is on the rise among New Zealand employees and his firm has conducted "dozens" of investigations into employees who have been found to be dealing in or using P, and who are also guilty of employer theft and fraud.

"At present, more than 80 per cent of our [employee] investigations that lead to admissions [of crime] relate to people using or dealing in methamphetamine. The

users can be anyone, male or female. They can be well educated and many are managers," says Thompson.

Thompson says P is a growing problem for employers because it can result in workplace violence and the money to pay for it is typically stolen from employers. Surveillance and investigation, while stressful and upsetting for employees, ultimately results in a safer and more secure workplace, says Thompson, and most employees support the employer's right to monitor staff activity inside and outside of work hours.

"Honest people caught up in an investigation do find being interviewed traumatic. But I can't think of one situation where staff was not eventually happy because the [offender] was caught. People realise you have to break a few eggs to make an omelette," says Thompson.

Employers willing to risk the possibility of their employees remaining a scrambled part of that omelette also risk them resigning or complaining to a health and safety agency about the stress they have been placed under. So when do employers overstep the line - when is surveillance unwarranted? And what is an employee's legal right to privacy in the workplace?

Ryan says three key acts of law protect employee privacy in the workplace and place limits on the activities of employers, security guards and private investigators - the Crimes Act, the Privacy Act and the Private Investigator and Security Guard Act. Among other restrictions, cameras cannot be used in changing rooms or at all without employee knowledge if there is no suspicion of illegal activity. Listening devices are illegal unless one side of the conversation knows about the device, and while documented evidence of a problem gives an employer the right to place a camera secretly in the workplace, once the problem is resolved, the camera must be removed.

Meanwhile, private investigators are allowed to follow employees from a workplace and observe their personal lives - they may even be placed in the organisation as a bogus (and unusually attentive) employee - but any information collected on individuals must be for a lawful purpose and follow lawful procedures.

Ryan says if challenged in a court of law, close surveillance methods are assessed on a case-by-case basis but there are many case examples where zealous surveillance methods have been allowed.

However, he says while workplace surveillance is now more common as a result of new trends including mis-appropriation of electronic property and health and safety concerns around drug use, if the methods an employer uses are found to be in breach of the acts of law or a legal employment contract, then employers can, and do, find themselves in the galling position of having to pay damages to an employee who deserved their dismissal.

While larger businesses usually obtain legal advice before undertaking workplace surveillance, smaller businesses loathe incurring those costs and may end up with damages awarded against them for breaches of employee privacy or for lack of fair conduct, says Ryan.

In other words, Big Brother might be watching, but then again, so is the law.