Unfortunately, it is a reality that some workers will intentionally lie about injuries on the job. In order to constitute fraud, an employee must be knowingly lying, and not just stating a misunderstanding or inadvertently misstating facts. When an employer believes an employee is making a fraudulent claim that he or she has been injured, there are different ways an employer may seek to prove the fraud. One method could be to hire a private investigator.
A private investigator can be an excellent investigative tool, as he or she can gather video recordings documenting evidence of fraud. For example, if an employee claims that he has been injured on the job to such an extent that he cannot walk without the help of a cane, then video of that same employee playing soccer on the weekends would obviously be compelling evidence of fraud. The private investigator can covertly follow the employee and video record activities, but there are limits to what is legally plausible in a fraud investigation.
For example, California civil code section 1708.8 makes it unlawful for someone to knowingly enter someone’s land without permission or somehow trespass in the process of attempting to video record a person engaging in otherwise personal activities. The same code section also makes constructive invasion unlawful. This occurs when someone uses a visual or auditory enhancing device to attempt to capture a visual or sound recording of personal activity when a person has a reasonable expectation of privacy. In other words, if your private investigator is climbing over privacy fences or using enormous telephoto lenses to peer into a back yard, he may be in violation of this provision.
The damages for violating these sections can be severe. If a perpetrator is sued in civil court for violating these statutes, the plaintiff could recover treble general and special damages, as well as punitive damages.
Case law indicates that it is possible that an employer could be sued if their private investigator violates these statutes during the course of a fraud investigation. While capturing video or audio evidence of fraud is enticing, make sure that any private investigators acting on your behalf are aware of these laws and are not harassing the employee or overstepping the civil code restrictions.
If you have questions about when a video may be used to demonstrate a fraudulent workers’ compensation claim, I am ready to answer your questions. Call me at (714) 516-8188 or email [email protected] to set up a meeting to discuss the use of video in proving fraud in your case.