Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, February 26, 1995 TAG: 9502240025
SECTION: BUSINESS PAGE: F-2 EDITION: METRO
SOURCE: WARREN RICHEY FORT LAUDERDALE SUN-SENTINEL
DATELINE: LENGTH: Long
In an effort to monitor performance and identify wrongdoing, they are eavesdropping on telephone conversations by employees.
A series of recent telephone monitoring cases in federal courts across the country are raising questions about how much privacy employees should expect while talking on their phones at work.
Experts in privacy law say most American workers are unaware that their bosses have a legal right to monitor and record business-related calls made by or received by employees while on the job.
But that doesn't mean supervisors can eavesdrop on every conversation under way on an office or plant telephone. Generally, personal conversations are off-limits, these experts say.
``I don't think most employees are adequately on notice,'' said Robert Ellis Smith, editor of Privacy Journal in Providence, R.I. ``There is wide latitude for employers to monitor conversations.''
The following cases are among the most recent to end up in court:
In Rochester, N.Y., the former manager of a McDonald's restaurant is suing the fast-food chain and his then-boss, claiming the boss made copies of amorous voice mail messages that the manager left for his girlfriend on an interoffice phone system. The boss later played tapes of the messages to the manager's wife and fired the manager.
In North Miami Beach, Fla., a supervisor at the Oceanmark Bank suspected a loan officer of giving confidential information to a competitor. The supervisor listened in on one of the loan officer's conversations, confirmed his suspicions and fired the loan officer. The loan officer is now suing the bank and supervisor for listening to his phone conversation without first notifying him.Florida has one of the strictest telephone privacy laws in the country, requiring all parties to a phone conversation to give permission before anyone else can listen in or record the call.
But there is a little-known loophole in both Florida and federal law. Lawyers call it the business extension exception. It means that the telephone privacy law doesn't apply to most business calls. In effect, companies are allowed to monitor and record company-related business calls provided they use a standard telephone system extension - not a bug or wiretap - and the monitored calls are work-related.
The key issue in both cases is not whether the bosses acted secretly to gather information about their workers, privacy experts say, but whether the intercepted conversations were work-related.
If they were work-related, the lawyers said, McDonald's and Oceanmark should win. But if the intercepted conversations were personal, then the companies may be liable for civil damages for violating their employee's right to privacy, legal experts said.
``The burden of proof remains with the employee to show that the employer was monitoring conversations other than those in the regular course of business,'' said Robert Turk, a Miami attorney specializing in employment law. ``Employers who cross that line, being voyeuristic about listening to their employees' phone conversations that have no business purpose, do face the potential for real damages being levied against them.''
Ask Juanita and Newell Spears.
The couple, who run a liquor store near Camden, Ark., were ordered in December 1991 by a federal judge to pay their ex-employee, Sibbie Deal, $40,000 in damages for secretly recording and disclosing intimate telephone calls that Deal made from the Spearses' store telephone while at work.
The trial record reads like an afternoon soap opera, prompting the trial judge to call it ``a case of sex, lies and audio tape.''
The episode began in April 1990, when someone broke into the store and stole $16,000. The Spearses suspected it was an inside job. So they installed a tape recorder on the liquor store phone and recorded every call made from June to August 1990.
At the same time, Deal was having an extramarital affair and used the liquor store telephone to make ``sexually provocative'' calls to her lover, who also was married. She made as many as three calls a day.
No tips on the robbery came up in the 22 hours of tapes, but the store owners did discover that Deal once had sold her lover a keg of beer at an unauthorized discount.
They confronted Deal and fired her. The Spearses also told Deal's husband and her lover's wife of the secret tapes and their racy content.
The judge called the Spearses' conduct ``inexcusable.''
Lawyers say employees concerned about telephone monitoring at work should ask supervisors about the company's policy. If they aren't sure, the experts urge employees to be careful.
``You really have to be cautious in the workplace, not only with the telephone, but with voice mail and the computer as well,'' said Smith of Privacy Journal. The rules of telephone privacy apply to voice mail, but those governing computer files and e-mail messages still are evolving.
``If you think you are being monitored, don't do anything you don't want your employer to know about and make all private or personal calls from another phone outside work,'' Turk said.
``On the employer side, my best advice is to get a policy that advises employees what you will be doing and state that monitoring is one of the conditions of working at the company.'' Turk added, ``And don't listen in on private calls.''
by CNB