Privacy Issues in the Workplace

Generally, employers route and store their e-mail on their own servers and equipment. However, text messages, which are communicated via cellular telephones or pagers, are routed through a wireless communications provider (an ECS) which often only temporarily stores the record of the communication. If an employer wishes to avoid the uncertainties that arise when messages, including e-mail, are routed through the network of an outside communication service provider, the employer may choose to limit its communication resources to those that are routed through the district’s server and equipment. For example, certain cellular telephones have software that allows the employer to route all communications through its network. Additionally, in light of the ruling in Quon v. Arch Wireless , companies in the business of providing electronic communications services will likely require a specific waiver from the end user of an electronic device (such as cellular telephones, personal digital assistants) as a condition of releasing information to the employer (the subscriber). For this reason, if the 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. 442 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. 443 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.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 135