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MONITORING EMPLOYEES' TELEPHONE USE

 

Some employers concerned with excessive use of business phones for personal calls adopt policies allowing them to monitor employees' calls that are made over company phone lines. Other companies may need to monitor employees' phone calls in order to evaluate customer service within their company. Whatever the reason for monitoring calls by employees, employers need to be aware of certain legal issues. One is that an employer has the right to monitor its own phone system in order to ensure that employees are using the system for its intended purposes (this right involves the so-called "business extension exception" to the federal wiretapping law - see 18 U.S.C. § 2510(5)(a)). That means that employers have the basic right to listen in on calls, and even record the calls; however, due to the federal law known as the Electronic Communications Privacy Act (amended since by the USA Patriot Act of 2001), the employer needs to let the employees and the calling public know that such monitoring may be taking place. Another issue is that of invasion of privacy - an employer does not have the right to listen in on what are obviously private, personal conversations past the time that the nature of the call becomes clear. In other words, once an employer has established that an employee is discussing private matters over the phone, it should not continue listening after that point. The appropriate thing to do if such a call violates the employer's policy is to document the incident and treat it as a disciplinary matter. Not all situations in which private matters are overheard will constitute the common-law offense of invasion of privacy, but employers should be careful and give personal discussions a wide berth. In general, if an employer eavesdrops on a clearly private phone call and overhears personal, intimate, private details about a person's life, and a reasonable person would find that the disclosure of such information is offensive or embarrassing, the employer would be at risk in an invasion of privacy lawsuit. A final issue is that of consistency. As with any employer policy, a phone use policy should be reasonable, should strike a balance between the needs of the company and the needs of the employees, and should be enforced in a fair and consistent manner. Giving proper attention to those issues should enable a company to ensure that its phones are used in the most business-efficient way possible.

 

Not many court rulings exist on the issue of telephone monitoring in workplaces; the following cases illustrate the important things to keep in mind. In the case of Simmons v. Southwestern Bell Tel. Co., 452 F.Supp. 392 (W.D. Okl.1978), affirmed, 611 F.2d 342 (10th Cir. 1979), the court held that an employee had no expectation of privacy in making personal calls from a "testdesk" telephone that was dedicated to business use only, especially since he was under a policy prohibiting personal use of such a phone and had been warned for making such calls from that phone, and the company had the right under that policy to monitor any and all calls to and from the phone in question, including the employee's personal calls. In James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979), the Tenth Circuit Court of Appeals held that " ... the evidentiary matter before the trial court when it granted summary judgment in favor of the defendant on the wire interception claim showed that the defendant had requested the telephone company to install a monitoring device which would permit the defendant to listen in on telephone conversations between its employees and its advertisers, and others. This was a part of the service rendered by the phone company on request. As indicated, the reason for the installation was the concern by management over abusive language used by irate customers when called upon to pay their bills, coupled with the possible need to give further training and supervision to employees dealing with the public. The installation was not done surreptitiously. Rather, all employees were advised in advance, in writing, of the proposed installation, and there was no protest. In our view, the present case comes squarely within the exception provided in 18 U.S.C. § 2510(5)(a), and it is on this basis that we affirm the summary judgment granted the defendant on the second claim." In 1980, the Fifth Circuit mentioned the James case with approval and noted that " ... interception of calls reasonably suspected to involve non-business matters might be justifiable by an employer who had had difficulty controlling personal use of business equipment through warnings. ... Were the business justification less compelling, the absence of any company policy or prior warnings concerning use of company telephones might be more significant." Briggs v. American Air Filter Co., Inc., 630 F.2d 414 (5th Cir. 1980), notes 8-10.

 

The Eleventh Circuit's 1983 decision in Watkins v. L.M. Berry & Co., 704 F.2d 577, favorably noted the Briggs case and stands for the proposition that an employer should not listen to a personal call any longer than it takes to establish that it is not a business call: "The consent and business extension exemptions are analytically separate. Consent may be obtained for any interceptions, and the business or personal nature of the call is entirely irrelevant. Conversely, the business extension exemption operates without regard to consent. ... This consent (to a policy on monitoring of sales calls) included the inadvertent interception of a personal call, but only for as long as necessary to determine the nature of the call. So, if [the supervisor's] interception went beyond the point necessary to determine the nature of the call, it went beyond the scope of Watkins' actual consent. (Watkins, 581) ... We hold that a personal call may not be intercepted in the ordinary course of business under the exemption in section 2510(5)(a)(i), except to the extent necessary to guard against unauthorized use of the telephone or to determine whether a call is personal or not. In other words, a personal call may be intercepted in the ordinary course of business to determine its nature, but never its contents." (Watkins, 583) A more recent case is an unpublished 2000 decision from a federal district court in northern Texas, Oyoyo v. Baylor Health Network, Inc., No. Civ. A. 3:99CV0569L, 2000 WL 655427 (N.D. Tex., May 17, 2000). The company in that case had reviewed the employee's telephone records and monitored her phone calls. It had also made photocopies of her personal calendar in her office. The employee sued for alleged invasion of privacy on the employer's part. The federal district court ruled in the employer's favor, holding that the employer's actions were not unreasonable. First, the company provided the phone to the employee for business purposes - it was not the employee's personal phone. Second, the employer had been concerned about the employee's alleged non-business use of the phone (excessive personal calls, including personal long-distance calls made on the company phone). Third, the employee had posted her personal calendar on her office wall, thus showing that she herself did not consider it to be private. When the supervisor noticed that the employee had written derogatory comments on the calendar, she photocopied the pages for documentation. As the court observed, an employee "cannot have any reasonable expectation of privacy in items that she admittedly made no effort to keep private." All in all, none of the employer's actions constituted invasion of privacy.

 

The above cases highlight the importance of letting employees know in a written policy exactly what kind of telephone monitoring the company will do. If the company tells employees that all phone calls, whether business or personal, will be monitored, and the employee consents by signing the policy and remaining with the company, then any monitoring will be allowed, and the business extension exception to the wiretapping statutes will not be relevant or needed. If the company's policy provides only for monitoring of business calls (quality assurance, training, random sampling of customer service, and so on), then the business extension exception will apply, and the company may listen in on any calls, but must stop listening as soon as it becomes apparent that a call is personal. The company may make a record of how many personal calls an employee receives, and may take corrective action toward an employee based upon excessive personal calls, but should not listen to such calls any longer than necessary. As in all aspects of employee relations, a good policy and good documentation are key to handling telephone monitoring in an appropriate manner.

 

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