Back in the Saddle–Part 2
She contacted corporate counsel and began proceedings to deny Dakota's claim and terminate his employment for falsification of a claim. Although Dakota's attorney initially tried to appeal the workers' compensation claim, once the company informed him of the video, he dropped the case. When confronted with the evidence, Dakota made no effort to fight the termination.
Abuse of workers' compensation can significantly drain a company's bottom line as well as negatively affect employee morale and loyalty. Hats off to Miller! If he had not come forward, the company may have continued to pay Dakota's claims.
Dakota's work group had knowledge of the cowboy's scam. If he continued to successfully defraud the company, this could perpetuate the belief that "If he can get away with this, so can I." Unchecked, such thinking can spread rapidly and create other fraudulent claims. The major lesson in this case is to clearly communicate the company's philosophy concerning the consequences of any type of fraud and implement preventive strategies.
Regarding Emily's actions, we commend her reaction and response to Miller; it was close to perfect. She exhibited good listening skills, provided a supportive environment, and demonstrated patience, which helped Miller deliver a difficult message. Along with her listening skills, Emily used good open-ended questioning techniques during their discussion. She didn't pressure Miller or lead him into answers he might have anticipated she was seeking. Any less skill may have resulted in Miller's leaving without overcoming his obvious reluctance to inform on a co-worker.
We also credit Emily for controlling her desire to express her long-held suspicions to Miller. Such an admission would be clearly inappropriate and possibly defamatory, particularly if the allegations ultimately proved false or inconclusive.
While we do not see any invasion of privacy in this case since security conducted the filming in a public forum, one must also be aware of such issues. Thus, Emily should have consulted an attorney before sending security to the rodeo. Furthermore, in complicated legal proceedings, advice from attorneys in advance will help increase chances that chain-of-custody and other evidentiary issues don't preclude using a videotape in court.
Many of us think that Emily should have been more proactive in this case. She should have acted on her suspicions sooner by having her workers' compensation insurance carrier investigate Dakota's claims. If she had, perhaps the problem would not have persisted for two years. Insurance carriers employ investigators for just this purpose. Moreover, many companies require pre-employment physical examinations. This procedure typically narrows the possibility of paying for pre-existing conditions through workers' compensation.
Additionally, the company might consider adopting and publishing a confidential informant "hot line." This would make it easier for civic-minded employees to alert their employer about fraudulent activities and goldbrickers like Dakota.
Today many employers are plagued with meritless compensation claims. While most workers' compensation claims are legitimate, the proliferation of false claims has become a national crisis and costs employers unnecessary expenditures in insurance premiums, not to mention excessive absenteeism of the malingerers and loss of productivity. In some instances, insurance carriers and employers are driven to undertaking defensive tactics such as surveillance, as illustrated in this story, in an effort to expose the false claim.
Employers are often concerned about invasion of privacy claims when it comes to videotaping employees. Federal and state legislation is evolving in the area of workplace monitoring and employers need to ascertain the legality of videotaping in certain circumstances on their work premises. However, in this instance, the videotaping did not take place on company property–it took place in public, at an event where many individuals may have been taking photographs or videotaping, and where Dakota certainly had no expectation of privacy. Thus, he could not successfully claim that the company invaded his privacy.
While employers may not retaliate against employees for asserting their rights under workers' compensation law, it is not unlawful for an employer to terminate an employee who has falsified a claim.
Excerpted from Sex, Laws, & Stereotypes, by N. Elizabeth Fried, Ph.D.©