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Comments on ADT case – sued for employee spying on customer’s cameras / New Webinar - sign up now

June 22 2020
Webinar: Sign up now:
Title:  Understanding Risk Management Issues For Alarm / PERS Industry
When:  June 24, 2020  12 PM ET
Description:    Webinar will explain risk management issues for alarm and PERS industry.  Insurance issues such as type and amount of coverage, best practices, including contracts, common claims the industry faces and how they are assessed and handled.
Presented by:  Bart Didden, Chief Claims Administrator, Security America
Hosted by:  Ken Kirschenbaum,Esq
Who should attend:  owners, risk managers
Comments on ADT case – sued for employee spying on customer’s cameras from June 12, 2020 article
            I can only say that there but for fortune go I and every alarm dealer in the country.  Sure had me making damn sure the hatches are battened down.
            Is there a way we can share some of this with our customers via social media?  This is huge for us small businesses that are constantly competing against ADT- but I also do not want to fan any flames or start a fire.
            Thank you in advance 
            Some judge will decide the arbitration provision is no good and then figure out a way to say the contract provisions are unenforceable if ADT doesn’t start raining money soon.
            You don’t have to be in the alarm business to worry about the conduct of your employees.  “It’s always their fault” until there’s a problem, and then “it’s your fault”.  Keep in mind a few fairly simple legal issues.
            Employers can’t sue their employees for the employee’s negligence.  The employer has to eat the loss and the damages.  What’s the employer’s recourse?  Terminate the employee.  That could open a whole other bunch of issues, such as employment contracts, union contracts, company handbooks, illegal discrimination and entitlement to unemployment insurance.  
            Employers can’t withhold pay or dock pay to recoup damages causes by an employee.  Recourse?  See above.
            Employers are responsible for the action of their employees while the employees are acting within the scope of their employment.  “Acting within the scope of their employment” is the sticky issue.  How about this ADT employee who was installing and programming cameras, was he acting within his employment duties when he programmed the data to his own phone?  Probably not, but that’s what the arbiter of the facts will decide.  Illegal conduct is rarely within the realm of employment duties, unless of course you happen to work for a criminal enterprise.  No, that is not ADT.  
            When I first started representing alarm companies 45 years ago, I asked one of my clients how he kept tabs on his employees to be sure they weren’t working their own jobs on his time and with his material.  The client, and good friend, Gary Rose of Automatic Burglar Alarm and Counterforce Central Station [Forest Hills, NY- ] responded, “if they are I don’t want to know about it”.  In some regards times haven’t changed.  It’s tough to get good technicians in the alarm industry.  Some slack may be better than higher pay; at least that’s one way to view it.  
            But in other respects time has changed.  Then, 45 years ago, all you really had to worry about was your employee disabling the alarm and robbing the customer.  Now?  Same worry, but add to it invasion of privacy from audio to video.  Add to that circulating the data on social media.  
            Employers are not generally responsible for the illegal conduct of their employees, even when it’s a customer that’s damaged.  That’s not an absolute however.  Employers have a responsibility to screen their employees or face a claim for “negligent hiring”.  Employers also have a responsibility to monitor their employees to ensure that they are conducting themselves appropriately, and if not, terminate their employment.  
            If I recall the ADT case, ADT is accused of not monitoring the Pulse System and its employee who was able to exploit that system.  I defended a case where the response guards set off the alarm, waiting for the cops to leave, then robbed the fur store.  Customer sued and I had the case dismissed because the guards were acting outside the scope of their employment.  One claim was that the guards had access to the store’s keys, but I established that the keys were needed, were called for in the alarm contract, and were appropriately safeguarded by the employer.  
            Might be different today.  First, we probably can’t find a fur store.  Next the guards may not have had to wait for the cops to leave, assuming they got there in the first place.  Crazy times.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301