Know the laws before monitoring your employees' conversations

By Lauri D. Morris

Current law generally permits private employers to tracker their employees' workplace activities to monitor productivity, prevent theft and comply with discrimination laws. But employers still must take to comply with the laws that protect employee privacy.

The Federal Omnibus Crime Control and Safe Street Act of 1968 prohibits the interception of electronic and oral communications; but an exception permits employers to monitor employee telephone conversations if doing so is in the ordinary course of the employer's business. That means an employer may monitor employee conversations to make sure workers are complying with rules limiting telephone usage to business and training purposes.

Employers, however, must take care not to abuse this exemption. Once the employer determines that the employee is making a personal call in violation of its rule, it may not continue to monitor the substance of the call without putting itself at risk of violating that employee's privacy rights.

An amendment to the Omnibus Act expanded the scope of the law's privacy protections to cover all electronic communications transmitted by wire, radio, electromagnetic, photoelectric or photo-optic systems, including electronic, or e-mail, communications.

However, provisions of the amendment allow employers to monitor employee e-mail stored on company computer systems. While some states require that employers provide notice to employees that it will monitor e-mail, Wisconsin has no such requirement.

Private employers can protect themselves from employees claiming invasion of privacy by developing a policy on the use of company electronic communication systems. Such a policy should guide managers on the acceptable scope of any monitoring. It also should:

• Remind employees that all electronic communication systems - including voice, e-mail and fax machines - are owned by the company.

• Inform employees that the employer will monitor their communications to ensure compliance with company policies.

• Describe the company's purposes in monitoring e-mail, such as improving productivity, and ensuring compliance with all company policies, including harassment policies, and policies related to proprietary information.

• Detail permissible use of voice, e-mail, facsimile and the Internet.

• Determine whether usage will be limited to business purposes or whether incidental personal use is allowed.

• Advise employees that they should not expect privacy in electronic communications, even though they may be assigned a password.

• Remind employees that downloading material could trigger violations of other laws, such as copyright laws.

Employers will greatly increase their chances of successfully defending an invasion-of-privacy claim if they adopt clear policies and obtain signed statements from employees acknowledging they have both received and reviewed the policy.

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