Monitoring employee telephone communication

1. 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

2. More on telephone monitoring • Illegal to intercept or disclose intercepted phone communication unless certain exceptions apply: • The consent exception • The business extension exception

3. 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

4. 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

5. 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

6. 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

7. 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”

8. 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)

9. 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

10. 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