OctoberReport - page 6

October 2013 CBA REPORT
cover article
mployee theft can be described as
any stealing or any use of an em-
ployer’s assets without permission.
Along with concerns regarding advance-
ments of employee access to electronic
information, employers still must also
still deal with issues regarding physical
theft committed by
In this piece,
we will discuss
some issues related
to employee theft
committed against
private employers,
including: protection against employee
theft of physical assets, protection against
employee theft of non-physical assets (i.e.
electronic assets), and some other com-
mon employee monitoring mechanisms.
Protection Against Employee Theft
of Physical Assets
Security Cameras
Security camera recordings impli-
cate state and federal law wiretapping
issues. The applicable Ohio statute is
R.C. § 2933.51 and the applicable federal
statute is the
Electronic Communica-
tions Privacy Act,
18 U.S.C. § 2510-2520
(“ECPA”). Security camera recordings
with no sound do not violate Ohio or
federal wiretap laws because security
recordings do not qualify as “
oral, or
electronic communication
” as
defined in the wiretap statutes.
A num-
ber of federal courts have also held that
federal wiretap laws do not apply to silent
The ECPA defines “oral
communication” as “any oral communi-
cation uttered by a person exhibiting an
expectation that such communication
is not subject to interception under cir-
cumstances justifying such expectation.”
Therefore, even if the video recording
does record sound, the oral communi-
cation must still be made in a situation
justifying an expectation that the com-
munication will not be intercepted. An
employee could possibly bring a tort law
claim related to “invasion of privacy”
against the employer for the use of such
surveillance, but this type of tort law
claim would be difficult to establish in a
workplace setting due to the burden on
the employee of demonstrating that the
subject area is actually “private.”
Armed Security Guards
Armed security guards generally
raise tort law concerns. Employers are
generally vicariously liable for torts
committed by employees within the
scope of their employment. Further, the
Ohio Supreme Court has expanded the
liability of employers for independent
contractor torts. In Pusey
v. Bator
Ohio Supreme Court held that a manu-
facturing plant could be held liable for
the negligence of an armed security
guard employed by an independent
contractor. The Ohio Supreme Court
found that the work of an armed security
guard is inherently dangerous as a matter
of law, concluding that “it is foreseeable
that someone might be injured by the
inappropriate use of the weapon if proper
precautions are not taken.”
The court
held that the armed security guard’s
duties were “non-delegable,” and there-
fore the liability
and duty of care
associated with
these responsibili-
ties could not be
An employer that engages in inter-
state commerce must comply with the
Employee Polygraph Protection Act
Under, an employer may not
“directly or indirectly…require, request,
suggest, or cause any employee or pro-
spective employee to take or submit to
any lie detector test.” 29 U.S.C. § 2002(3)
(A) provides that employers may not
discharge or discriminate against, or
deny promotion to, or threaten to take
any such action against any employee or
prospective employee who refuses to take
or submit to any lie detector test, or any
employee or prospective employee on the
basis of the results of any lie detector test.
An employer who violates this statute
faces a statutory penalty of up to $10,000,
as well as potential costs associated with
a civil lawsuit filed by the employee.
There are some limited exemptions to
the general prohibition. The EPPA’s
prohibitions do not prohibit a covered
employer from requesting a polygraph
exam, where the employer demonstrates
four conditions, including that the test is
By Peggy Barker and John Wolfenden
Monitoring and Avoiding
A client list is entitled to trade secret status only
if the information is not generally known or
readily ascertainable to the public.
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