Monitoring Telephone Calls

Employers always have monitored employee job performance for work product quality, efficiency and productivity, but they have traditionally relied on supervisors to do this. Increasingly, employers are using technology to track employee workplace performance, sometimes through monitoring telephone calls.

In some industries, listening to an employee's telephone conversations enables the employer accurately to assess the employee's contact with clients and the public. In these industries, such as catalogue sales and telemarketing, employees understand that they may be monitored. However, in other work situations, according to one national workplace privacy poll, 81% of Americans believe employers do not have the right to monitor an employee's telephone calls. Indeed, some studies link electronic monitoring with increased stress and feelings of social isolation, according to the "Journal of Applied Psychology."

Nonetheless, many employers monitor telephone calls under an exception to the Federal Wiretapping Act, which allows surreptitious monitoring in the "ordinary course of business." A general policy of monitoring does not by itself establish that the monitoring of any particular call occurred in the ordinary course of business. Rather, every particular monitoring activity must be considered separately to determine whether it occurred in the "ordinary course of business."

For example, the "business extension exception" was a safe harbor to an employer where a supervisor had reasonable suspicions an employee was disclosing confidential information to a competitor and had warned the employee of his suspicions. The court held the supervisor acted in the ordinary course of business by listening in on an extension phone while the parties discussed business information. Snaps v. American Air Filter Co., 630 F.2d 414 (5th Cir. 1980). The exception also applied when, after overhearing a phone conversation in which an employee berated supervisors, an employer turned on a taping system to record the remainder of the conversation. The court held the exception applied because the conversation occurred during office hours, between co-employees, and concerned scurrilous remarks about supervisors. "Certainly the potential contamination of a working environment is a matter in which the employer has a legal interest," the court stated in Epps v. St. Mary's Hospital, 802 F.2d 412, 417 (11th Cir. 1986). Likewise, in Ali v. Douglas Cable Communication 929 F. Supp. 1362 (D. Kan. 1996) the employer monitored calls by its employees, who were customer service representatives, to supervise employee training and service. While the court found the employer had a legitimate purpose for monitoring telephone calls, the court only recognized the legitimate purpose of monitoring business calls, not all calls.

Notably, the "business extension exception" did not protect a liquor store owner who suspected a recent-burglary of the store was an "inside job" involving one of his employees. The employer installed a device to record surreptitiously all calls made or received at the store. The plaintiff employee, who was married, was having an affair with a second plaintiff, who was also married. The employer recorded about 22 hours of calls, many of them sexually provocative. The employer was unable to implicate the plaintiff in the burglary but did learn she sold her paramour a keg of beer at cost for which she was terminated. The employer argued, among other things, the monitoring came within the "business use" exemption. The court disagreed and found the employer had violated the Federal Wiretapping Act by using the recording device, Deal v. Spears, 980 F 2d 1153 (8th Cir. 1992).

Similarly in Sanders v. Robert Bosch Corp., 38 F.3d 736 (4th Cir. 1994), the court held the exception could not protect an employer when it attached a "voice logger" to record all phone calls. A security guard employed by a subcontractor of the company claimed the taping violated the Federal Wiretapping Act. The court held the taping was not protected by the business extension exception because the logger was not "a telephone or telegraph instrument, equipment or facility," and there was no business justification for "the drastic measure of 24-hour a day, 7-day a week recording of telephone calls." 38 F.3d at 741.


Monitoring E-mail

The Electronic Communications Privacy Act of 1986, regulates the monitoring of electronic communications, including electronic mail or "e-mail." The ECPA provides criminal and civil penalties against any person who intentionally intercepts an electronic communication. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508,100 Stat, 1848 (codified as amended in scattered sections of 18 U.S.C.).

The applicability of the ECPA to private employers monitoring their employees' e-mail is unresolved by the federal courts. The statute includes several exceptions, including one for monitoring done in the "ordinary course of business" for the provider of the communication service or for situations where one of the parties to the communication gives prior consent. The statute also allows the provider of the service to record the fact that a communication was made to protect the provider from fraudulent, unlawful, or abusive use of such services. Finally, the disclosure of stored electronic communications is permitted with the consent of one party to the communication or when incident to the rendition of the service or to the protection of the rights or property of the provider of that service.

Court decisions involving monitoring employee e-mail have balanced the employer's legitimate business needs against the employee's privacy expectation. In the case, Smyth v. Pillsbury Co., 914 F. Supp. 97, (E.D. Pa. 1996), an employee was discharged for sending "inappropriate and unprofessional comments via e-mail. The employer had assured its employees that all e-mail communications would remain confidential and privileged and would not be intercepted and used as the basis for discipline or termination. Nonetheless, the plaintiff's communications were intercepted and were used as the basis for the termination of his employment. The employee sued for wrongful discharge and claimed the employer violated public policy by terminating him in violation of his common law right to privacy. The employee cited Borse v. Piece Goods Shop Inc., 963 F.2d 611 (3d Cr. 1992), a Third Circuit decision dealing with urinalysis and property searches in which the court found that "Pennsylvania common law regarding tortious invasion of privacy" could, under the proper facts, support a claim for wrongful discharge.

The Smyth court, however, rejected the employee's claim stating:

"We do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system, notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the unprofessional comments to a second person. . . over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost. Significantly, the defendant did not require Plaintiff as in the case of an urinalysis or personal property search, to disclose any personal information about himself. Rather, plaintiff voluntarily communicated the alleged unprofessional comments over the company e-mail system. We find no privacy interests in such communications."

Smyth, 914 F. Supp. at 101

The court also held that, to establish a violation of public policy, the employee must show the company's actions were a "substantial and highly offensive invasion of the employee's privacy." In this instance, a reasonable person would not find the employer's actions to be so, the court held. Id. at 102.

Conclusion

Expansion of employee privacy rights in America's workplaces will continue. In fact, as technology allows an employer to monitor "what no employer has monitored before," the "right to be let alone" may become the personal oasis in a technological desert. Accordingly, employers should take immediate steps to protect themselves from potential privacy claims. Suggested preventive measures include:

• giving applicants and employees notice of intended monitoring and what forms it will take;
  
  
• ensuring that monitoring is directly related to the purposes and functions of the employee's job;
  
  
• using reasonable and unobtrusive means to monitor employees when necessary:
  
  
• using employee monitoring only where reasonable suspicion of inappropriate activity exists; and
  
  
• safeguarding the confidentiality of private information obtained about employees.

The next articles in this series will discuss other infotech privacy issues such as the internet, surveillance cameras, sample policies and other more traditional privacy concerns in the workplace.