Facts: Robert Swan worked as a surveillance officer at a casino from 1989-2005 before he was accused of misconduct and terminated from employment. His employer alleged that Swan and three other guards misused security recording devices to observe and zoom in upon selected parts of female anatomy in violation of casino regulations. An investigation of the charges cleared Swan of any misconduct after video tapes proved Swan did not abuse the equipment and was performing his job as a conscientious surveillance operator during the course of his employment. But before the charges were cleared, reports leaked to the press and were made widely public in newspaper and television reports. Swan sued the casino owner alleging that the casino was liable to him for invasion of privacy. The casino filed a motion for summary judgment, arguing that Swan’s claims were equivalent to a defamation of character claim and should have been filed within a year of the alleged infraction. The trial court applied the one-year statute of limitations to Swan’s claim and dismissed the lawsuit after determining that the deadline for a complaint expired before Swan filed his lawsuit. Swan appealed.
Decision: On appeal, the court agreed that while Swan attempted to frame his complaint as one for invasion of privacy, the underlying allegations essentially claimed defamation of character. Swan sought to recover damages for the casino’s role in depicting him as a criminal, or in the least as an individual who improperly spied on unsuspecting women. The court found that under the applicable statute of limitations, Swan was required to file his lawsuit within a year of his employer’s alleged misconduct, but that he failed to do so. The court of appeals determined that the lawsuit was time-barred and that the casino could not be held liable for the alleged defamation.
Implications: Employers should remember that allegations of misconduct can follow individuals throughout their careers and adversely effect their quality of life outside the workplace. Accordingly, thorough and objective investigations should be conducted before terminating an employee. In the least, an employer should note that publicizing an employee’s alleged infraction without conducting an unbiased investigation could lead to liability for spreading false and defamatory information. Swan v. Boardwalk Regency Corp., No. A-6229-07T1 (New Jersey Superior Court, Appellate Division May 7, 2009)
Source: Security Law Newsletter, published monthly by Strafford Publications, Atlanta, GA. www.straffordpub.com, phone: 800-926-7926 ext. 10 or email: custserv@straffordpub.com.
