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Employee Monitoring

As an employer, you might have several reasons to listen in or record your employee’s telephone calls.

As telephones have become mobile, in addition to your regular land-line phones, your staff might be using mobile phones and smart phones, whether company-issued or their own personal handsets.

With the proliferation of mobile communications, risk to the employer has multiplied exponentially.

Here are some reasons why, as an employer, you might want to monitor the phone conversations of your staff:

  • Quality Assurance – making sure your customers are dealt with correctly and politely
  • Risk Management – monitoring for potentially abusive behavior, such as sexual harassment, bullying or racial hate speech
  • Trade Secret or Data Theft – keeping watch for the loss of important  company secrets and data
  • Illegal Behavior – such as workplace theft, embezzlement and drug abuse
  • Productivity – mobile devices can be time-wasters, especially smart phones, because they are connected to the internet.  Even if you block facebook, your staff can access it wirelessly on their mobile devices.
  • Loyalty – is one of your key staff members loyal, or plotting to knife you in the back?

This piece covers the federal legal framework for the monitoring and recording of employee phone calls by the employer.  There will be additional posts explaining the various differences in state laws in this area.

Mobile phones present numerous privacy issues, because the modern smart phone is a mini-computer.  They contain emails, call logs, IM messages, internet data and personal data.  Smart phones are also capable of sending GPS location data and transmitting voice communications.

The constitutionality of wiretapping goes back to the age of prohibition in which the US Supreme Court approved of wiretapping in a criminal context.   Olmstead v. United States, 277 U.S. 438 (1928)

Ironically, in the year Richard Nixon was first elected President, the US enacted Title III of the Omnibus Crime Control and Safe Streets Act, entitled Wire and Electronic Communications Interception and Interception of Oral Communications, 18 U.S.C.A.§§2510-2520.  Simply known as the Wiretap Act, the law sets out the general framework for securing the privacy of telephone communications.

Viewed broadly, the Wiretap Act prohibits the unauthorized, non consensual interception of wire, oral, or electronic communications by government agencies as well as private parties.  However, a notable exception was cut out to allow employers to monitor and record phone conversations of their employees.

The act states that “It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.”  18 U.S.C.A. §2511(2)(iii)(d).

Basically, the federal government and 38 states adhere to the general rule that only one party to a telephone conversation must consent to the call being monitored or recorded.  In those states, if an employer adopts a policy and makes it clear to its employees that all workplace telephone communications may be monitored or recorded, then one party has consented, and the interception is perfectly legal.  Therefore, to comply with the law in these states, the employer only needs to notify its employees that it has a policy of monitoring and recording workplace phone calls and obtain the employee’s written acknowledgment of the policy.

Many businesses record phone conversations in order to have proof of what transpired during the call, monitor performance of employees, or even to train their staff. This is not considered to be telephone tapping in most US jurisdictions because at least one of the parties knows that the call is being recorded or monitored.

The lead court case testing this exception to the Wiretap Act was not in the employment setting, but rather a domestic dispute between separated spouses.  In Simpson v. Simpson, 490 F2d 803 (5th Cir. 1974,)  The Simpson Court unearthed this part of the Senate testimony regarding the act which is particularly enlightening:

The tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance. Commercial and employer-labor espionage is becoming widespread. It is becoming increasingly difficult to conduct business meetings in private. Trade secrets are betrayed. Labor and management plans are revealed. No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man’s personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor’s advantage.

And, despite this finding, the Simpson court concluded that the Wiretap Act was enacted only to regulate criminal and governmental wiretapping, not private wiretapping.  It concluded that private wiretapping, which involves privacy rights, is best left to the states to legislate.  As cited above, 38 states have adopted the federal definition of wiretap where no parties to the conversation have given their consent to the monitoring or recording.

There are, however, 12 states which require both parties to the conversation consent to the recording or monitoring of the calls.  In two party consent states, an employer needs more than just acknowledgement from the employee of the company’s phone monitoring policy. The best industry practice in these 12 states, is to have an announcement at the start of a call that call may be recorded.  This has been held to be sufficient notice that should the second party to the call, not want the recording or monitoring to proceed, that they may discontinue the call.

There are alternatives to the announcement system.  Other services that have some kind of call recording capacity such as Google Voice enforce notifications for call recordings. When the recording session is activated a voice comes on letting the participants of the conversation know that the recording has begun.

Some companies use a beeping sound when phone recording is in session. Having these devices in place cover the companies from a legal perspective but creates an awkwardness on the call since people tend to be more guarded when constantly reminded that they are being recorded.

An employer has a plethora of reasons for monitoring and recording employee telephone conversations.  For the most part, creating and disseminating a recording/monitoring policy will avoid any liability on the part of the employer.  In select states, where 2-party consent is required, the employer will have to take additional steps to make sure that the second party to the call is also aware that the call is being monitored or recorded.