Privacy Issues in the Workplace

employer wants to monitor communications transmitted via ECS providers, it should obtain a signed release from all employees using employer issued pagers and cellular telephones that specifically allows the ECS provider to release the communications to the employer.

3. B USINESS U SE AND N OTICE E XCEPTIONS Two exceptions to the Wiretap Act and the ECPA may apply to employers. The first is a “business exception” that allows operators of communication service providers to monitor the use of their equipment in the ordinary course of business for purposes of protecting their rights and property. For example, an employer that hosts its own e-mail service may monitor employee activity on its server. Second, the Wiretap Act does not apply where a party to the electronic communication has consented to the interception. Thus, an employer who gives employees notice that their electronic communications are subject to monitoring, and has obtained each employee’s written consent to monitoring through a signed acknowledgment of the employer’s computer and electronic communications policy, has greatly insulated itself against potential liability. Watkins v. L. M. Berry Co.

The employer had a policy of monitoring sales calls as part of its employee training program. 444 The court held that because of the company policy, the employer could monitor business calls without violating the Act. Briggs v. American Air Filter Co. Inc. 445 An employer was held not to have violated the Federal Wiretapping Laws by intercepting an employee’s phone call who was disclosing confidential business information to a competitor. Epps v. St. Mary’s Hospital of Athens 446 The employer was held not to have violated the law when she intercepted an interoffice phone conversation between two employees who were making scurrilous and disparaging remarks about fellow employees. Bohach v. City of Reno 447 Police officers claimed violations of the Fourth Amendment and wiretap statutes and sought to halt their Department’s investigation into their possible misuse of the computerized paging system. The court held that the police officers did not have a reasonable expectation of privacy in their use of the computerized paging system and that the Department could access their electronic messages. The court stated that all the messages were recorded and stored, not because anyone was “tapping” the system, but simply because that was an integral part of the technology which stored messages in the central computer. Further, the Department had notified all users that their messages would be “logged on the network” and that certain types of messages were banned from the system.

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