New York employer faces lawsuit over covert filming of medical examinations

Photo by  Online Marketing  on  Unsplash

Photo by Online Marketing on Unsplash

The Port Authority of New York and New Jersey is accused of secretly filming employees' private medical examinations without their consent or knowledge.

A senior administrative employee filed a class action lawsuit, alleging that she was secretly videotaped during a medical examination. The incident occurred in August 2016. The employee (“Plaintiff”), who is suing for unspecified damages, has also asked the court to certify a class action on behalf of some 8,000 employees whose medical examinations could also have been secretly recorded.

The video camera was a fixture in the examination room, where Port Authority employees received confidential medical care. This suggests that video recording was carried out with the full knowledge and approval of the employer. (Evidently, the employer provided the employee with the recordings.)

“If, as is alleged, the Port Authority used an installed camera to videotape one run-of-the-mill medical examination, it is plausible to infer that the Port Authority regularly recorded others, too,” Federal Judge J. Paul Oetken wrote.

The recorded examinations violated the U.S. and New York state constitutions, particularly rights to privacy and to be free from unlawful searches and seizures, the lawsuit said.

Employee monitoring - considering the evidence

In this class action lawsuit, the court considers that the employer has engaged in the practice of filming its employees’ private medical examinations and had done so without their knowledge or consent.

During previous litigation concerning a workplace injury, it was apparent that the plaintiff’s medical examination has been video recorded by a camera which was permanently fixed to a wall or ceiling.

The lawsuit stems from an incident in 2016, when the Port Authority employee received a hand injury during a physical altercation with a co-worker. Following the altercation, the employee was examined by a doctor in one of the medical services offices, provided by the Port Authority, for the exclusive use of its workers.

The Plaintiff later took the co-worker to court over the incident. During the course of discovery, the Port Authority ("Defendant") allowed the Plaintiff to view a number of video recordings. One of the recordings showed the Plaintiff's medical examination from August 4, 2016, in its entirety. The video looked to have been recorded from a camera mounted on the ceiling or wall, pointing directly at the examination area.

The court considered that the Plaintiff has sufficiently alleged that the Defendant’s practice of filming its employees was an official company policy or custom.

The factual allegations concerning the single known occurrence of surveillance supports an inference of a more widespread practice. Moreover, if the Defendant used a permanently-installed video camera to record one “run-of-the-mill” medical examination, it is entirely plausible to infer that it regularly filmed other such examinations as well.

The Port Authority (Defendant) argue that if a person such as a “rogue employee” installed the video camera and habitually recorded examinations, it was not aware of the practice. However, the court countered that this argument “strains credulity”, since it is reasonable to infer that someone with enough access to install a permanent camera in a non-public area on the Defendant's premises acted with its approval.

The complaint also makes clear that the Defendant was aware of the footage being produced, since it was themselves who provided the Plaintiff with the recording of her medical examination in the first place.

Violation of Fourth Amendment rights

The court considers that the allegations make it plausible that the Defendant regularly recorded its employees' medical examinations and that the Defendant’s practice violated the Plaintiff’s reasonable expectations of privacy.

If found to be true, such evidence supports more than a mere possibility that the Defendant recorded other employee's medical examinations without their knowledge or consent.

The Port Authority was given 14 days to respond to the remaining claims.