Disclaimer
Some employers concerned with excessive use of business phones for personal calls adopt policies allowing them to monitor employees' calls that are made over company phone lines. Other companies may need to monitor employees' phone calls in order to evaluate customer service within their company. Whatever the reason for monitoring calls by employees, employers need to be aware of certain legal issues. One is that an employer has the right to monitor its own phone system in order to ensure that employees are using the system for its intended purposes. That means that employers have the basic right to listen in on calls, and even record the calls; however, due to the federal law known as the Electronic Communications Privacy Act (amended since by the USA Patriot Act of 2001), the employer needs to let the employees and the calling public know that such monitoring may be taking place. Another issue is that of invasion of privacy – an employer does not have the right to listen in on what are obviously private, personal conversations past the time that the nature of the call becomes clear. In other words, once an employer has established that an employee is discussing private matters over the phone, it should not continue listening after that point. The appropriate thing to do if such a call violates the employer's policy is to document the incident and treat it as a disciplinary matter. Not all situations in which private matters are overheard will constitute the common-law offense of invasion of privacy, but employers should be careful and give personal discussions a wide berth. In general, if an employer eavesdrops on a clearly private phone call and overhears personal, intimate, private details about a person's life, and a reasonable person would find that the disclosure of such information is offensive or embarrassing, the employer would be at risk in an invasion of privacy lawsuit. A final issue is that of consistency. As with any employer policy, a phone use policy should be reasonable, should strike a balance between the needs of the company and the needs of the employees, and should be enforced in a fair and consistent manner. Giving proper attention to those issues should enable a company to ensure that its phones are used in the most business-efficient way possible.
A Texas court recently ruled on a telephone monitoring case. In addition to monitoring the employee's phone calls, the company had reviewed the employee's telephone records. It had also made photocopies of her personal calendar in her office. The employee sued for alleged invasion of privacy on the employer's part. The federal district court ruled in the employer's favor, holding that the employer's actions were not unreasonable. First, the company provided the phone to the employee for business purposes – it was not the employee's personal phone. Second, the employer had been concerned about the employee's alleged non-business use of the phone. Third, the employee had posted her personal calendar on her office wall, thus showing that she herself did not consider it to be private. When the employer noticed that she had written derogatory comments on it, it photocopied the pages for documentation. All in all, none of the employer's actions constituted invasion of privacy. (Case: Oyoyo v. Baylor Health Network, Inc., No. Civ. A. 3:99CV0569L, 2000 WL 655427 (federal district court for the Northern District of Texas, May 17, 2000).)