Our office remains open to serve your important legal needs during these turbulent and challenging times. We are happy to schedule client consultations and client meetings by telephone or video-conference at your request.
Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Privacy at Work

An employee’s right to privacy in the workplace used to apply only to personal items, storage lockers, mail, and life outside the office. However, when technology entered the equation, the right to privacy became more complicated. Both state and federal laws govern the employer-employee relationship and common problems that can arise with employer monitoring of employee telephone and computer usage.

In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act which allowed an employer to record or monitor telephone conversation of its employees if the conversation occurred on equipment provided by the employer and a legitimate business reason existed for the monitoring. Yet, this law was enacted before the inventions of e-mail and voicemail. The federal Electronic Communications Privacy Act of 1986 (ECPA) was enacted by Congress to extend government restrictions on wire taps from telephone calls to include transmissions of electronic data by computer.

However, the ECPA only prohibits employer access if it is done without authorization or in a manner that exceeds the authorization given. The prevailing view is that if the employer provides an internal e-mail and voice mail facilities for employee use, the employer can establish policies for access to those systems and grant supervisors the authorization to inspect and monitor them. The Act also allows companies to monitor employee e-mails given one of the following scenarios: 1) a need to protect itself, 2) a legitimate business reason or, 3) consent from the employee. Given the vagueness of the language, there is plenty of room for employers to monitor calls and e-mails. One court upheld the employer’s procurement of two months’ worth of text message records of the employee’s because the employer wanted to determine if the monthly limit on characters on the current plan was too low for sending work-related messages and if the limit should be increased to accommodate legitimate business requirements.

Private phone conversations are also afforded minimal protection by the ECPA. The ECPA states that an employer may be liable for obtaining, reading, disclosing, deleting, or preventing access to an employee’s voicemail messages that are in “electronic storage.” Similarly, employers may monitor conversations with clients without prior notification, according to federal law.

Personal calls are another matter. The ECPA states that an employer may not listen in on personal calls unless the employee gives his or her consent. Once an employer determines a call to be personal, he or she is usually required to hang up. One loophole, however, is when an employee has been warned about making too many personal calls. This admonition may be grounds for the listener to be able to continue to listen.

Federal law does little to restrict employer monitoring of employee electronic communications. The law in Colorado is similar. Colorado wiretapping and eavesdropping statutes proscribe the interceptions of communications but not the retrieval of those communications from computer storage. Moreover, there is an express exception to the wiretapping and eavesdropping statutes for persons using devices on their own premises for security or business purposes if reasonable notice of the use of such device is given to the public. Colorado employers must obtain express or implied consent of employees prior to monitoring employee e-mail or voice mail and must confine such monitoring activities to retrieval of such communications from the employers own computer storage facilities rather than interception of the correspondence.

If you have a question about your employer’s monitoring of your personal calls and e-mail, contact a lawyer to discuss your legal rights.

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Bryan E. Kuhn, Counselor at Law, P.C.
1660 Lincoln Street Suite 2330
Denver, CO 80264

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