We have arrived at the place we long feared: Technological advances have made it easy for Big Brother—and anyone else who wants to join him—to watch us. In truth, most employers would just as soon spend their time on other things. And the law does require that most workplace monitoring—listening in on telephone calls and audio-taping or videotaping conversations—must have some legitimate business purpose. Other than that, however, there are very few federal legal controls protecting workers from being watched and listened to while at work.
Some states set their own bounds on how much prying you must tolerate. For example, several states have laws specifically restricting searches and surveillance of employees, and some of those laws are quite powerful. In Connecticut, for example, an employer that repeatedly uses electronic devices, such as video cameras or audiotape recorders, to monitor employees in restrooms, locker rooms, or lounges can be fined and sentenced to jail for 30 days. (Conn. Gen. Stat. § 31-48b (2008).)
This article covers the basic rules that apply to monitoring of employee phone calls and voice mail, as well as secret recordings in the workplace. For information on other types of workplace surveillance, see Email Monitoring, Fired for Blogging, and Cameras and Video Surveillance in the Workplace.
In general, it is legal for employers to monitor business-related telephone calls to and from their own premises—for example, to evaluate the quality of customer service. However, a federal law, the Electronic Communications Privacy Act, or ECPA (18 U.S.C. § § 2510 to 2720), puts some major limitations on that right. The ECPA restricts individuals and organizations, including employers, from intercepting wire, oral, or electronic communications.
Under the Act, even if a call is being monitored for business reasons, which is perfectly legal, if a personal call comes in, an employer must hang up as soon as he or she realizes the call is personal. An employer may monitor a personal call only if an employee knows the particular call is being monitored—and he or she consents to it.
While the federal law seems to put some serious limits on employers’ rights to monitor phone calls, some state laws have additional safeguards. A number of them require, for example, that not only the employee but the person on the other end of the phone must know about and consent to the call’s being monitored.
Despite these legal controls, however, the reality is that employers fairly freely listen in on employees’ phone calls—and many workplace experts claim the number of such eavesdroppers is on the rise.
Much business communication takes place through messages left on voice mail systems—and the ECPA appears to protect them. It states that an employer may be liable for obtaining, reading, disclosing, deleting, or preventing access to an employee’s voice mail messages that are in “electronic storage.” But given the true workings of voice mail systems, this clarifies little. It is still up for debate, for example, whether the ECPA—widely denounced as an awkward and muddled piece of legislation—prohibits employers from listening to messages that employees have listened to but not deleted from workplace phone systems.
Almost half of the companies responding in a recent American Management Association survey reported they use video monitoring to counter theft, violence and sabotage. Only 7% use video surveillance to track employees’ on-the-job performance. But nearly all said they notify employees that the cameras may be rolling beforehand.
But now there’s another twist in the on-the-job taping. As the number of lawsuits over workplace disputes has grown, so has an alarming trend: Both employers and employees intent on bolstering their claims have begun to record one another in the hope of capturing some wrongdoing on tape. There are a number of legal and practical problems with this approach to gathering evidence, however.
Federal law appears to allow any person involved in a conversation to tape it without the other person’s knowledge or permission—as long as the recording is not made for the purpose of committing a crime, such as extortion. But a number of state laws have much stricter controls—generally requiring that everyone involved must consent before a conversation or an action can be taped.
Although our guts might tell us the opposite, audiotapes and videotapes also have questionable value as trial evidence. Before any jury would be allowed to hear or see a tape of a workplace scene, the tape would have to satisfy many picky rules designed to qualify and disqualify trial evidence.
Also, in real life, tapes rarely run to script. They often come out garbled or unclear. And they rarely hold up well out of context. What may feel like a damning conversation in which your boss blatantly admits you were fired because of your age may sound very different to those who do not know your boss or you.
If you have any desire to keep your job, confronting your employer with a tape immortalizing some perceived transgression is not the way to convince him or her that you make a loyal asset to the company.
All warnings said, the fact that you have an incriminating tape may make your employer more likely to quickly settle a complaint you lodge (assuming your recording doesn't violate the law). It may make an investigating agency, such as the Department of Labor or Equal Employment Opportunity Commission, take a closer look at your file. It may make an attorney more inclined to take on your case. But the tactic is just as likely to backfire. You are in the best position to evaluate whether recording a workplace confrontation or other incident is your best shot at getting strong evidence for later negotiations or a lawsuit—or is more likely to help you lose your job.