We have arrived at the place we long feared: Technological advances have made it easy for Big Brother—and anyone else who wants to join him—to watch us. In truth, most employers cannot properly be painted as paranoid Peeping Toms. And the law does require that most workplace monitoring—listening in on telephone calls, audiotaping, or videotaping conversations—must have some legitimate business purpose. Other than that, however, there are very few federal legal controls protecting workers from being watched and listened to while at work.
Some states set their own bounds on how much prying you must tolerate. For example, several states have laws specifically restricting searches and surveillance of employees, and some of those laws are quite powerful.
In Connecticut, for example, an employer that repeatedly uses electronic devices such as video cameras or audiotape recorders to monitor employees in restrooms, locker rooms, or lounges can be fined and sentenced to jail for 30 days. (Conn. Gen. Stat. § 31-48b 1987.)
1. Telephone Calls
In general, it is legal for employers to monitor business-related telephone calls to and from their own premises—for example, to evaluate the quality of customer service. However, a federal law, the Electronic Communications Privacy Act, or ECPA (18 U.S.C. §§ 2510 to 2720), puts some major limitations on that right. The ECPA restricts individuals and organizations, including employers, from intercepting wire, oral, or electronic communications.
Under the Act, even if a call is being monitored for business reasons, which is perfectly legal, if a personal call comes in, an employer must hang up as soon as he or she realizes the call is personal. An employer may monitor a personal call only if an employee knows the particular call is being monitored—and he or she consents to it.
While the federal law seems to put some serious limits on employers’ rights to monitor phone calls, some state laws have additional safeguards. A number of them require, for example, that not only the employee but the person on the other end of the phone must know about and consent to the call being monitored.
A decade ago, the first test of the ECPA’s bounds questioned an employer’s right to secretly monitor workplace calls.
In the case, Newell and Juanita Spears, owners of a liquor store, tape recorded and listened to the telephone calls of an employee they suspected of helping rig a burglary of the store. They first warned the employee, Sibbie Deal, to stop making personal calls and that her calls might be monitored. The Spearses recorded about 22 hours of phone calls. While the tapes mentioned not a peep about the burglary, they did reveal that Deal sold a keg of beer at cost in violation of store policy—and that she carried on long and salacious phone calls with her boyfriend while store customers presumably listened and waited.
The Spearses fired Deal—first playing her a snippet of the tapes to explain their beef. The court held that the Spearses had violated the ECPA by taping and playing her calls and that warning her they might monitor the calls did not qualify as consent. (Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992).)
2. Voice Mail
Much business communication these days takes place through messages left on voice mail systems—and the ECPA appears to protect them. It states that an employer may be liable for obtaining, reading, disclosing, deleting, or preventing access to an employee’s voice mail messages that are in “electronic storage.” But given the true workings of voice mail systems, this clarifies little. It is not yet known, for example, whether the ECPA—widely denounced as an awkward and muddled piece of legislation—prohibits employers from listening to messages that employees have listened to but not deleted from their systems.
3. Computers
Nearly every workplace in America today conducts some part of its business on computers, and many businesses have become slavishly devoted to them. While hailed by many as timesavers and aids to efficiency, computers have lent a new murkiness to workplace privacy laws.
a. Computer Files
There still is no specific law controlling whether and when the files you create on a workplace computer are legally protected from others’ snooping eyes. In legal battles over the issue, employers who claim a right to rummage through employees’ computer files must show they have a valid business purpose for doing so. Employees often counter this by claiming that they had a valid expectation of privacy—a logical, reasonable belief that others would not retrieve and read the files.
A growing number of employers have attempted to clear up the question of what is and is not considered private about workplace computers by writing specific policies spelling out what is and what isn’t considered proper business use there.
b. Email
While it is unclear whether the Electronic Communications Privacy Act applies to voice mail messages, its application to electronic mail, or email, systems is murkier still. The Act, which originally served to limit wire-tapping, took effect in 1986, before business email systems became the commonplace animals they are today.
Questions of legality aside, the truth is that many employers now routinely monitor email messages that their employees send and receive. This is easy to do. Some email systems copy all messages that pass through them; others create backup copies of new messages as they arrive on the system servers. Workers who logically assume their messages are gone for good when they delete them are painfully surprised to learn they are wrong.
Technology has now turned on itself as more companies buy into the software and electronic surveillance systems that make it easier to monitor email spawned in an earlier age. In some situations, even the most stalwart privacy advocate can see that the forces behind the monitoring are legitimate—motivated by concerns over poor job performance, quality control, loss of trade secrets, and potential liability for sexual harassment and other discrimination claims.
Stories abound of those who abused email privileges at work—and got reprimanded or fired for offensive or overindulgent e-chatting. Courts called upon to decide claims that employers have violated workers’ privacy by prying into their email are still asked to weigh the reasonable expectation of privacy against the employer’s reasonable business justification.
Again, a growing number of companies have taken proactive measures by establishing written policies informing employees of acceptable use of email at work. They range from absolutist controls banning personal email on the job completely, to limiting it to reasonable use, to the rare but existing nod that email will not be monitored on the job. While there is still no overarching law on email privacy, bills drafted so far have focused on this notification feature.
c. Internet Use
The next gasp of complaints about employers monitoring computer use on the job is likely to settle on employees’ Internet habits. And some former employees have already felt the sting when hit with evidence of site surfing that is hard to pass off as work-related. For example, one fellow was recently fired on his third day of work at a large CPA firm after being confronted with company records that revealed repeated trips to a pornography website.
A growing number of employers are taking the draconian step of blocking employees’ access to home email and Internet sites they deem frivolous or without a sufficient work-related purpose, such as movie search and retail sites. Such filters are imperfect at best and often counterproductive at worst—barring access to sites the employee needs to complete a job task. But they are currently legal.
The wisdom quickly emerging is to save personal surftime for your home computer.
4. Mail
Whether or not an employee has the right to expect privacy in the mail he or she receives at work depends for the most part on company custom and policy. In most workplaces, one or more individuals routinely sort and distribute the mail—and most mailings related to work matters range from the boring to the mundane. An employer may inadvertently, or even purposely, open most such mail without incurring any legal liability.
However, sometimes mail arrives addressed to an individual worker that is also marked “Personal” or “Confidential”—or sometimes with the overkilling warning “Personal and Confidential.” An employer who opens such mail, or directs or sanctions another person in the workplace to do so, must usually have a compelling business reason to open it. If the employer cannot demonstrate a compelling reason—for example, that there was important, time-sensitive business information in the envelope, and the employee to whom it was addressed was on a month-long vacation—then the employer may be guilty not only of being rude, but of invading the addressee’s privacy.
5. Audiotaping and Videotaping
As the number of lawsuits over workplace disputes has grown, so has an alarming trend: Employers and employees intent on bolstering their claims have begun to record one another in the hope of capturing some wrongdoing on tape. There are a number of legal and practical problems with this approach to gathering evidence, however.
Federal law appears to allow any person involved in a conversation to tape it without the other person’s knowledge or permission—as long as the recording is not made for the purpose of committing a crime, such as extortion. But a number of state laws have much stricter controls—generally requiring that everyone involved must consent before a conversation or an action can be taped.
Although our guts might tell us the opposite, audiotapes and videotapes also have questionable value as trial evidence. Before any jury would be allowed to hear or see a tape of a workplace scene, the tape would have to satisfy many picky rules designed to qualify and disqualify trial evidence.
Also, in real life, tapes rarely run to script. They often come out garbled or unclear. And they rarely hold up well out of context. What may feel like a damning conversation in which your boss blatantly admits you were fired because of your age may sound very different to those who do not know your boss or you.
A final reality is that if you have any desire to keep your job, confronting your employer with a tape immortalizing some perceived transgression is not the way to convince him or her that you make a loyal asset to the company.
All warnings said, the fact that you have an incriminating tape may make your employer more likely to quickly settle a complaint you lodge. It may make an investigating agency such as the Department of Labor or Equal Employment Opportunity Commission take a closer look at your file. It may make an attorney more inclined to take on your case. But the tactic is just as likely to backfire. You are in the best position to evaluate whether recording a workplace confrontation or other incident may be your best shot at getting strong evidence for later negotiations or a lawsuit—or is more likely to help you lose your job.
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