Monitoring employee telephone communication

• Allow monitoring of number of phone calls, duration of calls, numbers to which calls are placed– Such monitoring does not acquire the content of the

calls

• Monitoring content of calls legal if– Monitoring is for a reasonable business purpose– Personal calls are not monitored beyond time needed

to determine they are personal– Uses regular phone equipment– Scope and manner of monitoring is not unreasonable

More on telephone monitoring

• Illegal to intercept or disclose intercepted phone communication unless certain exceptions apply:– The consent exception– The business extension exception

The consent exception

• Interception is allowed when one of the parties to a communication has given prior consent– Express consent versus implied consent– Consent for monitoring of business calls

should not be considered consent for monitoring of personal calls

Business extension exemption

• Does not require consent

• Very specific conditions apply– Either the phone company or the subscriber

furnished the intercepting telephone instrument, equipment, or component

– The equipment was used in the ordinary course of business

Case law

• Pascale v. Carolina Freight Carriers Corp: voice activated tape recorders attached to telephone to monitor employees’ calls—thrown out because recorders not excepted telephone equipment

• T.B. Proprietary Corp v. Sposato Builders—extension phone eavesdropping OK

• United States v. Harpel—may not monitor personal phone calls any longer than necessary to determine they were personal in nature

• Sanders v. Robert Bosch Corp—recording all telephone calls in their entirety is a drastic measure if no business reason to do so

Recommended steps for employer

• Identify reason for monitoring• Do not intercept personal calls• Provide a separate unmonitored phone for

personal calls• Inform employees in writing about the policy an

reason for it• Only allow authorized personnel to monitor the

calls• Get written consent from employees• If recording interstate calls, both parties to the

call must have notice of the recording

Other employee surveillance

• Oral conversations– Avoid use of electronic or mechanical devices– Only eavesdrop in situations where

conversations could not reasonably be expected to be overheard

– Obtain consent

• Video surveillance– If limited to video images without sound,

would not be subject to wiretap laws (don’t try lip reading cause it would be an “interception”

E-mail

• “Electronic communication” does not include the content of such communication while in storage (so interception not involved)

• Accessing stored electronic communication allowed if authorized by the person owning the service– Gives employers right to access stored messages on

their e-mail system

• May intercept e-mail if necessary to provide the service or to protect the rights or property of the provider (i.e., employer)

More on e-mail

• It is safer for employers to access stored e-mails than to intercept them while in transit

• Always a good idea to publish policy regarding treatment of e-mail messages, whether accessing stored or in-transit messages

More communication monitoring

• Voice mail messages—treated like regular voice telephone calls

• Computer files—not a form of communication so don’t fall under wiretap laws because no transmission of information

• Computer tracking systems—no subject to wiretap laws