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Public vs. Private: Worker Denied Benefits After Posting Sex Videos

The scenario is familiar: a person posts videos of him or herself engaged in sexual activities on the Internet, believing that in the infinite ebb and flow of global information, this particular bit of titillation will be lost in the wash. Then, someone who is interested in the honesty and fidelity of the amateur pornographer finds the online video and declares betrayal.

And yet for a North Carolina health care worker, the offended party was his employer. And the form of betrayal?  Workers’ Compensation Fraud.

The case highlights a troubling trend in the increasing intrusion of employers into the private, even intimate life, of their workers.  The case also reveals that without proper protection from workers’ compensation attorneys, the government is ready to support the employer’s effort to do so.

According to media reports, the plaintiff in the case  worked as a health care technician at a residential health care facility.  After being the victim of a physical struggle with a patient, the plaintiff reported a back injury and began to collect benefits in March 2007.

Court records reveal the employer began to hear reports that there were video postings on the Internet of the plaintiff engaged in sexual acts while he was receiving workers’ compensation benefits. Armed with these rumors, the health care facility hired a private investigator to substantiate these claims.

It seems the investigator did… tracking down a whopping 107 videos. Adding to the already provocative nature of the claims, the investigator discovered the other participant in the videos was a co-worker.   Citing this information, the employer fired the two workers in January 2008 for personal misconduct. While these dismissals themselves bring up a host of troubling questions about the rights workers have to autonomy and intimacy in their private lives, it is the further use of these videos that seem to represent the biggest threats to workers’ rights under workers’ compensation laws.

The Employer had a physician review several videos and testify that the acts depicted should have caused the worker substantial pain and suffering. Although the worker argued that the videos were filmed well before the date of the injury, the government met this claim with skepticism. In November 2007, the full North Carolina Industrial Commission ruled the worker was not credible and denied his claims to worker’s compensation.

In a world where videos of injured workers playing golf or working around the yard are aired by anti-labor  media outlets bent on stirring outrage in the public, the focus on a sensational sex video in this case and the seeming moral approbation attached to the worker by the Commission cannot be dismissed. And yet if we are to eject the puritanical lens through which the Commission no doubt viewed the case, there are even more deeply troubling trends in the erosion of workers’ rights suggested here.

The most obvious problem with the decision is the expectation that a worker must not maintain a functioning private life in the face of a work injury.  In effect, the Employer was arguing that the worker must completely forgo sexual relations to be credible in his claim to worker’s compensation.  And yet, if the worker could no longer have sexual relations with spouse, he or she could claim “loss of consortium” — i.e. the claim that the injury prevents one from having sex with a spouse.

Ultimately what is at stake here is the right for a worker to accept pain to engage in acts of private, human intimacy even while he has the right not to experience pain in the performance of work duties.

Workers that suspect their rights to privacy and autonomy are being tested or violated by employers should immediately contact an experienced Seattle or Washington Labor and Industries Lawyer to protect them.

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Emery Reddy