Download Monitoring employee communication

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