Employers often consider whether to use surveillance techniques in the workplace to provide greater security to both employees and customers. A case from West Virginia serves as a reminder that, while certain types of monitoring may be appropriate, there are limits to what employers can do.

Brad Bowyer was hired as a desk clerk in a 112-room motel in West Virginia.  About six weeks after beginning employment, he learned that management had installed surveillance equipment in the front desk and lounge area, including hidden microphones which permitted the owner to dial into the security system via modem and listen to conversations between employees and guests. When he asked about the equipment, however, he was told that it was not operational.  Only later did he learn that the microphones were capturing conversations.

Bowyer sued the motel’s owners, claiming a violation of the state (West Virginia) wiretapping act, which prohibits the unauthorized interception of any oral or electronic communications.  The motel’s defense was that business owners have a right and a duty to provide for the security of their guests and employees, and that such monitoring is an important element of that effort. Additionally, the motel argued that this type of surveillance is frequently used, and that employees should assume they are being monitored.

A jury rejected the motel‟s arguments and awarded Bowyer $100,000 in damages for the humiliation and anger he felt upon learning of the eavesdropping on his private and work-related conversations, plus an additional $400,000 in punitive damages. The jury’s verdict was later affirmed by both the state’s Court of Appeals and the Supreme Court.  At the heart of the Supreme Court‟s decision was the assertion that “most employees, even those working in “public” spaces, have a reasonable expectation that their oral communications with other employees or with customers are not going to be recorded by hidden microphones.”

Many states, including Minnesota, have a wiretapping statute similar to the one involved in the Bowyer’s case.  Most make it unlawful to intentionally intercept or disclose any wire, electronic, or oral communication without the consent of at least one of the participants in the conversation. (A similar federal law contains an exception when the monitoring occurs “in the ordinary course of business”). These laws often treat different forms of monitoring differently:

E-Mail: As a practical matter, courts have routinely permitted employers to monitor or review the e-mail transmissions of their employees as long as the employer previously (usually in an employee handbook) advised its employees that it had the right to do so, and if the employer could show a business-related reason for doing so. That reason might involve ensuring that employee‟s are not engaging in any behavior that could create liability for the employer.

Instant Messaging: Like e-mails, employers are generally free to monitor employee’s use of instant messaging that uses an employer’s computers, and the employee handbook should specifically address this technology as well.  A related problem is that employees often download IM software onto their work computers without authorization.  Employers should, therefore, also have a policy restricting the downloading of third party software.

Telephone Calls:  The interception and/or recording of telephone calls is a stickier issue.  If one of the participants in the call consents to its recording, there is no violation of the statute. Some courts have permitted an employer to tape record employee calls where a legitimate reason existed; i.e. for training purposes or as part of an investigation into inappropriate behavior. Other courts have not applied the wiretapping statute to such calls, but have found that taping might constitute an unlawful invasion of privacy.  In short, if an employer is considering monitoring employee telephone calls, it would be prudent to seek specific legal advice.

Videotape Surveillance:Generally, a video camera (without audio) which is open and obvious will not present any problems because employees and customers will be aware that they are being monitored and have no expectation of privacy.  Problems may arise, however, when the camera is hidden or where it records audio in addition to video. Several courts have found such uses to be unlawful invasions of privacy or wiretapping. Again, legal consultation on your specific situation is prudent before implementing such a system.

Drug Testing: Generally, drug testing of employees is permissible as long as it is uniformly applied and used only for legitimate business reasons. Many states, however, have statutes which provide employees with extensive procedural protections; some of these are quite burdensome for the employer.  In fact, Minnesota and Iowa have perhaps the most complicated laws in the country.  There are also federal regulations to consider in certain industries such as transportation. Again, it is best to seek specific legal advice before implementing such a system.

Genetic Testing: The most recent form of “surveillance” involves testing employees for genetic predispositions. At least one court has found that such a test invades a public employee’s constitutionally protected privacy interest; another lawsuit challenged such testing under a union’s collective bargaining agreement.  Forty-Six different states have enacted some form of general genetics legislation.

The question of how far an employer may go in monitoring the conduct of its employees is a complicated one, and will largely depend upon the particular facts of any situation, as well as the state or federal law which applies. The suggestions spelled out above should, however, go a long way to protecting employers against invasion of privacy and related claims.