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A Lesson For Employers: Watch What You Hear

By Brian Nuterangelo

There are a variety of legitimate purposes for monitoring and recording the telephone conversations of employees, but employers need to take care that they do not land on the wrong side of the law. Employers who monitor and/or record telephone conversations must carefully consider the rights of those on the other end of the monitoring or recording device. Federal and state statutes prohibit the interception of certain wire or oral communications and some states recognize additional common law privacy protections. An employer who chooses to monitor its employees’ telephone conversations should, at a minimum, be aware of the following issues.

Federal Law

Title III of the Omnibus Control and Safe Streets Act (Title III)1 prohibits the intentional interception and disclosure of wire communications, which includes telephone conversations. Violations of Title III can result in both criminal and civil sanctions, and the law authorizes the recovery of damages in a civil action. Title III does contain certain narrow exemptions. The two most relied upon exemptions are “consent” and what has become known as the “business extension exception.”

Title III does not prohibit the interception of a telephone conversation if one of the parties to the conversation has given prior consent to the interception.2 Consent may be given explicitly or it may be implied.3 But the fact that an employee merely knows that the employer has the capability to monitor telephone conversations is not sufficient to establish implied consent.4 The employee must be aware that the employer is monitoring the employee’s telephone conversations. Moreover, consent is not an all-or-nothing proposition. Courts have held that an employee can consent to the monitoring of business calls without consenting to the monitoring of personal calls.5

The “business extension exception” allows an employer to legally use certain types of equipment to monitor telephone conversations in the ordinary course of business. The business extension exemption requires not only a legitimate business purpose for the monitoring, but the use of specific equipment. The exemption only applies when the equipment being used to intercept the conversation is provided or installed by the employer’s provider of wire or electronic communication service in the ordinary course of its business.6

Regardless of the exemption, employers must be wary of intercepting employees’ personal calls. Courts have held that a personal call may be intercepted in the ordinary course of business to determine its nature, but never its content.7 Courts have routinely held that while employers may intercept telephone calls to determine whether the call is personal or for business, employers must discontinue their monitoring when it becomes apparent that the call is personal. Employers must carefully tailor their practices to avoid the monitoring or recording of personal calls.

State Interception Statutes

Each state, with the exception of Vermont, has enacted legislation that prohibits the interception of certain wire or oral communications. While the scope and breadth of the laws differ from state to state, it is generally illegal to record a conversation to which you are not a party, do not have consent to record, and could not naturally overhear. Twelve states require, under most circumstances, that all parties to a conversation consent to a recording. Thirty-seven states and the District of Columbia permit individuals to record conversations to which they are a party without obtaining the consent of the other party or parties. Under these “one-party consent” statutes, a party to the conversation may legally record. Several of these “one-party consent” statutes also allow a third-party to record under certain circumstances. Employers should understand the laws of the states in which they operate to reduce their vulnerability to lawsuits by employees whose conversations will be monitored or recorded.

Common Law Claims

In addition to state and federal law, employers should be aware of additional privacy protections that may have been created by the courts of each state. For example, a court applying Alabama state law permitted a person whose private conversations had been intercepted to bring a civil lawsuit for breach of the individual’s right to privacy.8

Tips for Employers

There are a number of measures employers can implement to help ensure full compliance with the legal requirements for monitoring employees’ telephone calls. First, employers should review the applicable state statutes to determine consent obligations. Second, an employer should only use telephone instruments that are furnished by the employer’s telecommunications provider, in the ordinary course of their business, to monitor or record telephone conversations. Third, an employer’s monitoring policy should be well publicized to the employees, and employees’ expectations of privacy should be reduced. An employer should obtain the explicit consent of employees to be monitored through the use of a signed consent form. Fourth, there should be a strong, legitimate business purpose for monitoring conversations and personal conversations should never be monitored or recorded. Because it is usually impossible to know if a telephone communication is personal until after the monitoring begins, monitors should be instructed to stop their monitoring efforts as soon as it becomes clear that the call is not business related. Finally, employers should have the particulars of the telephone monitoring program reviewed by counsel. 

Notes
1 1 18 U.S.C. §§ 2510-2522.
2 18 U.S.C. § 2511(2)(d).
3 See e.g. Williams v. Poulos, 11 F.3d 271, 281 (1st Cir. 1993).
4 See e.g. Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983).
5 Id.
6 18 U.S.C. § 2510(5)(a).
7 See e.g. Watkins, 704 F.2d at 583.
8 Aeges Group v. Raytheon Aircraft Co., 22 F. Supp.2d 1310 (M.D. Ala. 1998).

ABOUT THE AUTHOR

Brian Nuterangelo, a partner in Wiley Rein & Fielding’s Employment & Labor and Litigation Practices, regularly provides representation and advice on wrongful discharge, harassment, discrimination, employee leave, workplace privacy, employment contracts and a variety of other employment matters. He can be reached at 202-719-3172 or bnuterangelo@wrf.com. Nia Mathis, a former associate at the firm, contributed to this article.

This article is reprinted with permission from the February 2004 issue of WRF’s Workplace Trends. Workplace Trends is a publication of Wiley Rein & Fielding LLP providing general news about recent legal developments and should not be construed as providing legal advice or legal opinions. You should consult an attorney for any specific legal questions.

riskVue | The webzine for risk management professionals
September 2004