In its recent opinion for Lawlor v. North American Corp. of Illinois, the Illinois Supreme Court sent a warning message to employers who try to dig up evidence about former employees – you may be liable for punitive damages for invading the employee’s privacy.

The litigation in Lawlor initially began as a claim for unpaid commissions by a former employee. The employer filed a counterclaim that alleged that the employee had improperly tried to divert clients to another company (her future employer) while she was still employed at the company. The employer hired a private investigator to obtain copies of the employee’s personal phone records, with hopes that the records would substantiate the employer’s allegations. The private investigator obtained the phone records by impersonating the employee to the phone company, and when the employee found out about the impersonation, she amended her complaint to add a claim for “intrusion upon seclusion” which is a type of invasion of privacy claim.

Ultimately, the employee lost her claim for commissions and the employer was unable to prove its counterclaim, but the Illinois Supreme Court upheld a Cook County jury’s finding that the private investigator was acting as the employer’s agent, resulting in an award to the employee of compensatory and punitive damages because of the invasion of privacy. In the end, the employee ended up with $130,000 and the employer got nothing.