Introduction

Employee privacy in the workplace has become a "hot issue" in employment law today. Frequently, employers are concerned about their employees communications during work hours and whether those communications are work related or not. Obviously, an employee that engages in too much personal communication at work is not a productive employee. Employers have become more mindful of the time spent by employees communicating on personal matters and have taken steps to determine how much time employees spend communicating about personal matters. To protect the privacy interests of employees, among other things, both the United States Congress and the Connecticut General Assembly have enacted legislation that limits the steps an employer can take in monitoring employee communications. This article will focus on the Connecticut laws that impact your efforts to monitor your employee communications.

Electronic Monitoring

Connecticut General Statutes § 31-48b prohibits electronic monitoring of your employees. The statute prohibits you from operating any surveillance device or system, including sound or voice recorders, closed circuit television cameras, or any combination of these methods, for the purpose of monitoring the activities of employees in any non-work areas that are designed for the health or personal comfort of employees or for the safeguarding of their possessions. (For example rest rooms, lockers, lounges, etc.) You may also not intentionally overhear or record a conversation or discussion pertaining to employment contract negotiations between you and an employee by means of any device, instrument, or equipment unless you have consent of all parties to the discussion or conversation. A violation of this provision of the statute carries a fine of up to $500 for the first offense, $1,000 for the second offense, and a maximum imprisonment of 30 days for the third and subsequent offenses.

However, Connecticut General Statutes § 31-48d does provide for electronic monitoring of employees in certain circumstances and only with written notice to your employees. The statute defines electronic monitoring as follows:

The collection of information on an employer's premises concerning the employee's activities or communications by any means other than direct observation, including the use of a computer, telephone, wire, radio, camera, electromagnetic, photoelectric or photo-optical systems.

But, the statute specifically prohibits electronic monitoring for safety purposes in common areas held out for use by the public and other monitoring prohibited under state or federal law.

What does this mean? It means that, excluding any non-work areas that are designed for the health or personal comfort of employees or for the safeguarding of their possessions, you are allowed to electronically monitor your employees by such mechanisms listed in the statute, or others, but only upon prior written notice to all employees who will be affected. The notice should inform employees of the types of monitoring that may occur and shall be posted by you in a conspicuous place. Such posting shall constitute prior written notice. Therefore, if you wish to monitor your employees, you must post the types of surveillance which you may use in a location where all employees who will be affected by the surveillance can see the posting.

There is an exception to this rule. Prior written notice is not required when you believe that employees are engaged in conduct that violates the law, violates the legal rights of you or your employees, or creates a hostile working environment. This exception only applies however, if electronic monitoring may produce evidence of misconduct. Thus, if you have suspicions about an employee and believe that employee is violating the law, violating legal rights, or creating a hostile work environment, then you may conduct electronic monitoring without prior written notice if the monitoring may produce evidence of misconduct. If the monitoring will not produce evidence of misconduct, then you may not monitor without prior written notice.

Generally, Connecticut law also prohibits the recording of telephone conversations. However, recording of phone calls is allowed in: (1) all parties to the communication agree, and such agreement is either in writing, or is part of, and obtained at the start of the recording, (2) the recording is preceded by verbal notification that is recorded at the beginning and is part of the communication by the recording party, or (3) the recording is accompanied by an automatic tone warning device that automatically produces a distinct signal repeated at intervals of approximately fifteen seconds during the recording. Therefore, you must satisfy condition 1 and either 2 or 3 before you may record a telephone conversation.

E-Mail Issues

An increasing number of communications in the work place today are through e-mail. Much of these e-mail communications however are not work related. This combined with lack of communication between the employer and employees regarding e-mail, and employee misperceptions of privacy can lead to confusion and litigation. While, employers have been successful in winning lawsuits filed by employees claiming invasion of privacy claims, you should know that such claims are on the rise and that a "legal victory" is a not a clear cut certainty. As always, your goal should be to avoid litigation because even if you successfully defend a claim brought against you by an employee, it is likely to cost you thousands of dollars to defend that claim.

To avoid litigation you should perform a two step approach regarding e-mail: (1) implement a comprehensive e-mail policy that addresses the issues of privacy and acceptable use, and (2) limit the monitoring to what is necessary to protect your interests. This approach will limit your employees' reasonable expectation of privacy in their e-mail communications. To be successful under an invasion of privacy claim, the employee must prove a reasonable expectation in his or her e-mail communication which was violated by you.

Therefore, you should implement and distribute to your employees an e-mail policy that does the following, at a minimum:

1. alerts employees that the e-mail system is the property of the you;

2. advises employees that they should not expect that e-mail is confidential or private;

3. advises employees that communication sent, received, or stored on the system are subject to monitoring, access, or disclosure by you without any prior notice to the employees;

4. advises employees that the e-mail system "backs-up" e-mails so that even deleted e-mails may be retrieved and accessed;

5. advises employees that monitoring will be restricted to business and security reasons;

6. addresses issues of acceptable vs. non-acceptable uses of the e-mail system, including such issues as whether personal use of the system is permitted, rules regarding charitable or political solicitation, bans on chain mail, and bans on obscene or harassing e-mails;

7. advises employees that use of the e-mail system that does not conform to company rules will subject the employee to disciplinary action, up to and including termination.

To fully implement this policy, you should periodically remind your employees and supervisory personnel of the policy.

In addition to implementing the policy, only access e-mail for legitimate business purposes. Snooping of e-mails, even with the policy mentioned above, will rarely be tolerated in court. Acceptable business purposes would include monitoring employee productivity, system-related or technical reasons, and situations where you suspect that inappropriate, illegal, or business-threatening conduct is taking place via e-mail. Monitoring should be restricted to that necessary to effect your business purpose. Suspecting one employee of inappropriate e-mail should not result in the review of every employee's e-mail. If you confine your monitoring to the legitimate business purposes, you will have taken proper steps to protect yourself from invasion of privacy lawsuits.

Conclusion

Invasion of privacy lawsuits in the workplace are on the rise and employees are cognizant of their right to privacy during the work day. This presents a problem for you in your efforts to monitor your employees' communications and ensure that you have employed a productive workforce. If you are mindful of the limits of your right to monitor your employees' communications and implement lawful policies, you should be able to strike the balance between ensuring employee productivity and protecting the privacy interests of your clients.

First appeared in Connecticut Employment Law Letter (December 2000). For subscription information, call (800)274-6774. Reprinted with permission of publisher.

First appeared in Connecticut Employment Law Letter (January 2002). For subscription information, call (800)274-6774.