The majority of employers would rather spend their time doing other things than listening to the calls of their employees. There is no requirement that most workplace monitoring, such as listening in on phone calls and recording or videotaping conversations, have some legitimate business purpose. However, federal law does not provide much protection against workers being watched and listened to on the job.
Depending on your state, you may have to tolerate a certain amount of prying. Several states, including California, have laws restricting searches and surveillance of employees, and some of these laws are quite powerful. In this article, we cover the basic rules for monitoring employee phone calls and voicemails, as well as secretly recording work conversations.
Intercepting Telephone Calls
As a general rule, employers are permitted to monitor business-related telephone calls coming into and leaving their own premises-for example, to evaluate the quality of customer service. There are some major limitations to the right to privacy, however, due to the Electronic Communications Privacy Act (18 U.S.C. * * 2510 to 2720). Intercepting wire, oral, or electronic communications is prohibited by the ECPA for individuals and organizations, including employers.
Despite the fact that monitoring for business purposes is perfectly legal, if a personal call comes in, the employer must hang up as soon as the employer realizes the call is personal. Employers may monitor personal calls only with the consent of employees who know such monitoring is taking place.
There are some serious limitations on employers’ rights to monitor phone calls under federal law, however, some state laws have further safeguards. There are a number of regulations that require, for example, the employee and the person on the other end of the line to be aware and consent to the monitoring of the call.
Yet many workplace experts believe employers are increasingly listening in on employees’ phone calls despite legal controls – and many workplace experts claim this practice is on the rise.
Monitoring of Voice Mails
ECPA appears to protect voicemail messages, which are a common means of business communication. Employers may be liable under the law for obtaining, reading, disclosing, deleting, and preventing access to an employee’s voice mail messages that are stored in “electronic storage.” However, given how voice mail systems actually work, this provision makes little sense.
Some still doubt, for example, whether the ECPA – widely criticized as a confusing and awkward piece of legislation forbids employers from listening to messages listened to by their employees but not deleted from workplace phone systems.
The Audio and Videotaping To Track Employees
In a recent American Management Association survey, nearly half of the companies said they utilize video surveillance to prevent theft, violence, and sabotage. Only 7% use video surveillance to monitor and supervise performance on the job. Almost all, however, indicated they inform staff ahead of time that cameras may be present.
However, there’s a new wrinkle in the on-the-job taping. As the number of litigation over workplace disagreements has increased, a worrisome tendency has emerged: both employers and employees, in the hopes of capturing some misbehavior on camera, have begun to record one another. However, there are a number of legal and practical issues with this method of acquiring evidence.
Federal law permits anyone involved in a discussion to record it without the other person’s consent or knowledge long as the recording isn’t made for the goal of intimidation. However, a lot of state laws impose far greater restrictions, including everyone involved to consent before a discussion or action can be recorded.
Though our instincts may tell us otherwise, audio and videotapes have dubious usefulness as prosecution evidence. Before any jury could hear or see a film of a workplace scene, it would have to pass a series of stringent procedures meant to be accepted and rejected as trial evidence.
In addition, recordings rarely follow a script in real life. They are frequently jumbled or confused. And they don’t always hold up well when quoted out of context. To individuals who do not know your boss or you, what may seem like a damning exchange in which your supervisor plainly acknowledges you were terminated because of your age may sound very different.
The idea that you have incriminating audio may make your employer more likely to quickly settle a complaint you file (provided your recording doesn’t break the law), according to all of the warnings. It’s possible that an investigating agency, such as the Department of Labor or the Equal Employment Opportunity Commission, will look into your case further.
It might persuade an employment attorney in Los Angeles to take on your case. The strategy, though, is just as likely to have an impact. You are in the best position to determine if recording a workplace dispute or similar incident will help you collect compelling evidence for later discussions or a lawsuit or will make you lose your job.