By Sachi Clements , Attorney University of San Francisco School of Law
Updated by E.A. Gjelten , Legal Editor
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If your employer or the workers' comp insurance company is disputing your workers' comp claim, you just might get the feeling you're being watched. That's because, at least in some cases, you are.
Workers' compensation insurers often hire private investigators to conduct surveillance of individuals they suspect of fraud.
Read on to learn when such surveillance is legal and when it's not.It's not illegal—or uncommon—for insurance companies to hire private investigators to follow employees who've applied for workers' comp benefits, in an effort to prove that they're not as injured as they say they are.
Sometimes this is warranted to uncover fraudulent claims. But more often than not, insurers use surveillance as a routine tactic to avoid paying for even legitimate claims.
In general, it's not illegal for private investigators to observe you in public places and take photos or videos of you. They can also gather evidence from:
This doesn't mean they may go to any lengths to get incriminating evidence against you.
Private investigators aren't allowed to do anything illegal, which could include:
Despite these limitations, private investigators may gather valuable ammunition against you simply by following you around in public while you run errands, attend doctors' appointments, or mow your front lawn.
In some states, they may be allowed to take photos or videos of you inside your home, as long as they can see you from public property through a window.
Even in states with laws against secretly photographing or recording through the window of a house, such as Minnesota, it's generally only a crime if the person being recorded reasonably expected privacy (Minn. Stat. Ann. § 609.746(b) (2022)).
It would be hard to argue that it was reasonable to expect privacy when you're walking in front of the living room window with the curtains open, visible from the street.
Fortunately, you can take steps to prevent a private investigator from jeopardizing your workers' comp case. Even if the insurance company hasn't disputed your claim, make sure that your public activities are consistent with your injuries.
And be careful not to put yourself in situations that could look bad if taken out of context. For example, if you injured your back in the fall at work, don't allow yourself to be photographed or video recorded lifting heavy boxes, gardening, or horsing around with your kids.
You might think it's OK to try these activities and stop as soon as you feel pain. But a photograph of a single instant (or a brief video clip) could make it look like you're physically able to perform these tasks.
Finally, don't forget that private investigators have telephoto lenses and are trained to get quality photographs from over a hundred feet away. So just because you don't see photographers nearby doesn't mean they're not there.
Workers' Comp and Social Media PostsIf you've filed a workers' comp claim, you should be careful about what you post on social media, especially photographs.
Before you post a picture, ask yourself: Is there any way that this could be taken out of context in my workers' comp case? For example, if you're off work on temporary disability because of your injuries, don't post photographs of yourself hiking, even if you drove all the way up to the top of a hill and stopped to snap a picture.
If the insurance company disputes any part of your claim—especially if it has photos or videos that show you in a bad light—you should speak with a workers' comp lawyer.
An attorney who's experienced in this area of the law can help counter that evidence, put it in context, and gather other evidence that can support your claim. (Learn more about what a good workers' comp lawyer should do for you.)