Scenario

In today’s workplace, the use of video cameras for security and surveillance purposes has become more commonplace. Video evidence is also becoming more prevalent in unemployment insurance hearings. A recent case highlights how video surveillance can be used to an employer’s advantage in a hearing.

Situation

A man entered a hospital emergency room at around 3:00 AM pulling a suitcase. According to the security report, he was being confrontational and disruptive. The hospital staff called security and the guards and their supervisor, escorted the man out of the hospital. According to the security supervisor, as they approached the city sidewalk, the man slipped and fell into the street. The supervisor claimed to have offered to help the man up by extending both of his hands. The man allegedly refused the help and simply threatened the supervisor.

After assessing that the man was a trespasser without an injury, the supervisor left him on the street and went back into the hospital to file a report. The man filed a complaint against the supervisor and the security guards. The supervisor was discharged following an investigation and filed a claim for unemployment insurance benefits. The unemployment insurance department ruled the supervisor was eligible based upon his statement and the fact that the employer had no eyewitnesses to support the man’s story.

At the hearing, the employer played the video footage of the incident which showed the security guards accompanied by the supervisor roughly dragging the man out of the emergency room and pushing him onto a major city street. Although traffic was light at 3:00 AM, a car was approaching where the man was thrown to the ground.

Once the man was on the ground, the supervisor looked at him and turned to go inside the hospital. It was obvious from the video footage that the man was pushed by the supervisor. The man did not trip and the supervisor did not offer to help the man up but simply turned and left him in the street. Though only a second or two went by, the supervisor did not assess the man’s well-being. It turned out that the man was a newly admitted patient and was entering the hospital with a suitcase.

Solution

After viewing the video and hearing the vice-president of security testify, the judge had little difficulty in reversing the determination and disqualifying the claimant. Had the video not been presented, the claimant’s testimony would have been accepted because the employer did not have a first-hand witness. The employer did not want to involve its patient who had already been mistreated, and even if it had, the testimony would have been one person’s word against the other.

Takeaway

• Be sure that the video footage captured clearly supports the allegations
• Have a witness explain what is demonstrated in the video and why it is grounds for termination
• Always have a reliable means to play the video footage. Many states, like New York, will not allow the video to be shown on their own equipment
• Be sure to have a multiple copies of the video on hand to leave with the judge and the claimant
• If the case is a telephone hearing, forward a copy of the video to the judge and the claimant in advance of the hearing
• Be sure the witness is familiar with the footage and can easily direct the judge to the relevant portion
• Identify that portion for the record by a timestamp or other marking on the video if at all possible

Employers should also be aware that many times the claimant will ask the employer to produce a video if they feel that the video supports the employee’s position. If video footage of a final incident exists, it should be reviewed internally before the unemployment hearing (and preferably before the termination) to be sure of its consistency with the employer’s position on the case.