January, 1997

Fruits of Thought

Taking Undercover Too Far

In the early days of the second World War a fervent debate was raging in the British government. Some were excited at the prospect of breaking the German code in order to intercept messages and win the war, others, however, objected on the grounds that gentlemen simply do not read other men’s mail. Such punctiliousness was swept away, of course, as so much else has been in this bloody century by the urgent necessity to achieve the goal at hand: to win the war.

Well, rest assured, there has been no sudden revival of punctiliousness at ABC, the television network, now owned by Walt Disney Co., which has been engrossed in a legal battle with Food Lion, Inc., a supermarket chain based in Salisbury, NC. The focus of the lawsuit was a 1992 segment of “PrimeTime Live,” which claimed the retailer sold old food and repackaged out-of-date merchandise.

To get this story the producers went undercover at two Food Lion stores, not merely as shoppers secretly taking photographs or notes but as employees. This was found to constitute fraud, trespass and breach of employee loyalty on the part of ABC and its producers.

Though the actual damages were small, $1,042 in wages paid to the employees, the question of punitive damages remains to be settled as of this writing. Only significant damages would dissuade ABC from conducting similar operations in the future. After all, these hidden camera, undercover reports are big ratings boosters, and ABC makes a lot of money on them by selling commercials at big bucks.

Aside from the legalities of the dispute, however, there is a bigger question: To what extent can the media pursue a story? ABC argues that some stories can only be gotten by going undercover and that the public’s right to know has to trump niceties like the employer-employee relationship.

Well, I’m all for the public’s right to know, but ABC is standing on weak ground. This is an argument without a logical limit. If it is O.K. to commit fraud to get a story, what about breaking and entering? Suppose there was a story which could only be gotten by breaking into a safe in the dark of the night? Would that be acceptable? If not, why is it alright to lie one’s way into a job where one has access to a safe and thus can steal the relevant documents? ABC’s argument isn’t really a logical claim at all. It is more in the nature of a religious claim — basically making the assertion that if the media does it, it is right — a prospect so bizarre it boggles the mind.

In fact, this particular case is even more problematic. After all, one would think, employees might stop an unacceptable practice. Food Lion’s basic claim, in fact, is that while the producers were employed by Food Lion, the producers were obligated to ensure sanitary practices, the very sanitary practices which were the focus of the report.

This creates an insurmountable conflict of interest. As employees of Food Lion it was their obligation to try to stop any practices that were unsanitary or in violation of code. Yet, as producers for “PrimeTime Live,” they had an economic incentive to get as many pictures of people doing dastardly things as was possible. And, we know that television news shows have been known to go to great lengths to make a story look good. It is not unrealistic to think that producers on a show might actually encourage the very misconduct they want to catch.

The public’s right to know is a sanctimonious phrase journalists like to throw around as they wear the first amendment as a kind of super-powered cloak to ward off any objections to their behavior. Yet, the public’s right to know is not usually the crux of the matter. In this case, for instance, all the allegations would have been violation of health codes and other laws and regulations. ABC could have filed the same complaints with the relevant authorities that any consumer could have filed. Then, ABC would be free to cover the results of the investigation. But this would not have gotten the high ratings of a hidden camera report.

More than anything, I fault ABC for doing the report on the cheap. “PrimeTime Live” is a national program. That two stores might do something wrong just doesn’t tell us enough to know if we have something significant. Before broadcasting a report with these kinds of serious allegations, ABC had an obligation to determine if they were statistically significant. This would have meant investigations in many more stores covering all the geographic areas in which Food Lion operates. It also would have meant providing balance. After all, there are thousands of Food Lion employees, and some of them are surely very conscientious about food safety.

So where does all this leave those of us in the produce industry? I think it points to a basic truth of our age. For better or worse, zones of privacy have been shrinking. Texaco executives who thought they were having a private discussion — were not. Archer Daniel Midland executives who thought they were having a private conversation — were not. Food Lion employees who thought they were alone with other Food Lion employees — were not.

Loads of supermarkets, for generations, have opened up chickens to smell if they were bad and then repacked the good ones. And sometimes the night crew were preparing the vat of some salad spilled it on the floor, picked it up again and put it out for sale because the employee’s didn’t want to make another batch. When I worked retail, I cannot count the number of moldy tangerines I was directed to wipe clean so we could sell them. Most often, nothing happens as a result of any of this. This tempts us to do it again or to, at least, let it go.

In this world of the micro-cam, however, greater vigilance is required. Today, one is foolish to do anything in business which one would be ashamed to have on, well, “PrimeTime Live”. This means two things: A corporate culture vigilant about doing the right thing and a company incentive policy that ties into that kind of conduct. If we give bonuses to people based on reducing shrinking and give speeches about food safety, we can’t be surprised if our employees pay attention to the bonuses, and we shouldn’t be surprised if we wind up, one day, on a hidden camera picture on some television news magazine.  pb