by Jackson Lewis
The Need For A Secure Workplace
The devastating attacks of September 11, 2001 on thousands of employees in the New
York City and Washington, D. C. areas have called into question the security of every
American workplace. Enhancing the security and safety of the workplace involves tightening
up not only the physical surroundings but the conduct of employees who populate them.
Among the ways employers can retain more control over what happens at their workplaces
is to monitor the actions of employees. However, there are many restrictions, both
practical and legal, on what measures employers can lawfully take to monitor workplace
behavior.
Monitoring Telephone Usage
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."
Federal Wiretapping Act. 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."
Court decisions. For example, one court found 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. In another case, the exception 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. Likewise, an employer could monitor
the business calls by its employees, who were customer service representatives, to
supervise employee training and service, but 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.
Similarly, another 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."
Monitoring E-Mail
ECPA. The Electronic Communications Privacy Act of 1986 regulates the monitoring
of electronic communications, including e-mail. The ECPA provides criminal and civil
penalties against any person who intentionally intercepts an electronic communication.
ECPA and private employers. The applicability of the ECPA to private employers
monitoring their employees' e-mail is unresolved by the federal courts. As mentioned
above, 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. Court decisions involving monitoring employee e-mail have
balanced the employer's legitimate business needs against the employee's privacy
expectations. In a Pennsylvania case, 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 court rejected the employee's claim, stating:
- [W]e 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.
The Internet
The Internet is being used by many employers to short cut the more traditional sources
of information, such as print publications, research services, and the like. However,
many employees are using the Internet for a multitude of non work-related purposes,
including downloading free computer games, checking stock quotes, and reading the
"sports page."
Employe misuse of internet access. Employee misuse of employer provided Internet
access has gone beyond downloading games. Open viewing of sexually explicit Web sites
like Penthouse, using Playboy screen savers, posting lewd jokes on online company
bulletin boards, or other inappropriate conduct may create a "hostile working
environment" and provide the basis for a sexual harassment claim. The Telecommunications
Act of 1996, imposes criminal liability for transmitting or allowing to be transmitted
"indecent" materials over online and computer networks to which minors
have access. While this law limits the liability of companies whose employees illegally
spread obscene material without management's knowledge, employers nonetheless may
be liable for the creation of a hostile work environment.
Policies. Some companies have created official policies on employee use of
the Internet, informing employees they may be monitored and expressly barring employees
from downloading offensive material. Others have no official policy and actively
encourage employees to go on line as much as possible to gain insight on competitors
and customers.
NLRB restrictions. Policies that restrict employee use of the Internet and
email to business use only may run afoul of employee rights under the National Labor
Relations Act. The National Labor Relations Board has taken the position that blanket
prohibitions on the use of such electronic communication systems for only business
purposes may be unlawful no-solicitation and no-distribution rules.