H. Wiretapping and Eavesdropping

Because technological developments have enhanced employers' surveillance capabilities, electronic surveillance and monitoring devices are increasingly being used to keep tabs on employee conduct during the workday. Although these measures are primarily designed to combat employee theft, confidential information about an employee is also sometimes acquired.

Wiretapping and eavesdropping policies are generally regulated and, to some degree, prohibited by federal and state law. In liberal states it is perfectly legal for an individual to record his/her telephone or in-person conversation with another without first obtaining that other person's consent (since you need only one of the two parties' approval to tape). In such states, the recording may subsequently be used as evidence in a civil or criminal trial under proper circumstances (e.g., that the tape wasn't tampered with or altered and that the voices on the tape can be clearly identified).

Other states, however, are not permissive and forbid the interception of oral or wire communication unless both (or all) parties are advised and give their consent. These laws make it virtually impossible for employers to engage lawfully in surreptitious eavesdropping. Connecticut, for example, prohibits employers from operating any electronic surveillance device, including sound recording and closed circuit television cameras, in employee lounges, restrooms and locker rooms (but surveillance is not prohibited in work areas).

One Georgia company placed wiretaps on business telephones in certain stores. The court ruled that this was a violation under federal law and a violation of the employee's privacy rights under Georgia law. In another recent case, a supervisor monitoring the calls of one of its sales representatives overheard the sales representative say she was going to accept another employer's offer. Telling the employee what he had learned, the supervisor tried to dissuade her from leaving. The employee left anyway and sued the company for invasion of privacy. The court ruled that the employer had violated the law by listening to her personal calls, and awarded her damages.

Title III of the Omnibus Crime Control And Safe Streets Act. Those states which require that the other party be notified and consent to the taped telephone conversation, interview or interrogation, comply more closely with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the most important statute regulating the subject. This federal law prohibits deliberate and surreptitious eavesdropping, including the interception of employees' oral com- munications when uttered with an expectation that such communi- cation is not subject to interception. This means, for example, that when employees speak confidentially in places where they can reasonably expect privacy (i.e., a bathroom), their employer cannot eavesdrop without violating the statute. Employers who fail to comply with this federal law are liable for actual and punitive damages and criminal liability for willful violations.

Counsel Comment #74: Some companies maintain microphones between counter areas and a supervisor's office or instruct the office operator to listen in and monitor suspicious personal telephone calls by employees. In some situations, this is illegal and should be avoided. This kind of surveillance conflicts with Title III because the person eavesdropping or taping is not one of the two persons directly engaged in the conversation. However, if the conversation is between two employees on the job in a public area, both parties consent to the taping, and the employer has a genuine suspicion of wrongdoing, the act may be legal.

A recent case illustrates the scope and limits of employee monitoring. An employer, accused of illegally eavesdropping, was sued for damages, even though the monitored conversation was purportedly business-related. Employees had previously been warned that the company monitored business calls. One day an employee received a call from a friend advising her that another job was available. When her company heard this, she was fired; whereupon the employee sued the ex-employer under federal law. The court rejected the company argument that the employee's knowledge of its monitoring policy constituted consent (since, arguably, the worker consented only to monitoring of business calls). Additionally, the court ruled that the company was required to hang up immediately when the employee received a personal call.

Despite this case, in certain instances "extension phone" monitoring (i.e., where microphones are placed over the customer service desk so a supervisor can get a better understanding of an employee's contacts with clients and the public, measure productivity, and help to detect non-business-related use of telephone resources) has been upheld as legal if it falls outside the scope of the federal statute or is considered exempt from this federal law (and especially if a court is impressed with the fact that the employer only collects information needed for business purposes, establishes reasonable limits on the use of the data collected and refrains from monitoring private areas such as restrooms, cafeterias, locker rooms or an employee's car).

TIP: Although certain limited exceptions are set forth in Title III that allow an employer to eavesdrop on oral conversations or tap telephone conversations (e.g. where one of the parties consents), companies are advised to undertake an extensive analysis of the laws in their state before taking any action in this area. If the electronic surveillance law in their state imposes greater restrictions than Title III, you must comply with the requirements of both laws to be protected.