Drama of the Law: Employment Law
Employment Law
Electronic Surveillance of Employees
Answer Guide for Discussion Questions
Where can an employee reasonably expect to have privacy? Does it make a difference whether an
employee is in an open area, in which there are several desks and where conversations can be
overheard, or in an enclosed office, in which—when the door is closed—conversations cannot be heard
and where one would expect virtually total privacy?
The answer is yes, it makes a difference, and courts have so held. See, for example, United
States v. Chuang, 897 F.2d 646 (2d Cir. 1990), and the cases noted there, including United States v.
Leary, 846 F.2d 592 (10th Cir. 1988); and United States v. Lefkowitz, 464 F.Supp. 227 (C.D.Cal. 1979),
aff'd, 618 F.2d 1313 (9th Cir. 1980). Outside his or her own workspace, a corporate officer or employee
has a reasonable expectation of privacy to challenge a search if he or she has a "possessory or
proprietary interest" in the area searched and there is a connection between this area and his or her
own workspace.
Is Herman's need to know whether his salespersons are honest a sufficient ground for utilizing
electronic surveillance?
The answer probably depends on whether there are alternative methods of ascertaining the
honesty of salespersons that are less invasive of the employees' privacy. For example, Herman could
use surveys of customers to find out this information. In fact, many businesses use customer surveys
rather than electronic surveillance to evaluate the honesty of their sales personnel.
Does it matter whether the customer benefits from electronic surveillance of which the customer is
unaware?
The answer is no. It does not matter whether the customer benefits from the surveillance. What
is important here is that the privacy of the customer is being invaded without the customer's consent.
To what extent can an employer engage in electronic surveillance of employees? To what extent does
the inclusion of innocent, unaware third parties in such electronic surveillance determine whether it is
legal?
There is little specific regulation of private-sector employers' surveillance activities. The
Electronic Communications Privacy Act of 1986 prohibits intercepting electronic communications but
generally excepts business communications. An employer's interest in monitoring his or her employees
may conflict with the employees' privacy interests. The employees' interests may be asserted in a tort
action for invasion of privacy. To succeed in such a tort action, an employee must show that he or she
had a reasonable expectation of privacy in not being monitored. Generally, if the employer can point to
a legitimate and significant business reason for the surveillance, then the court may decide that the
employer's need outweighs the employees' interests in privacy. The means of surveillance should not be
extremely offensive—a court will consider the availability of less intrusive alternatives. To further
protect himself or herself, an employer should inform employees that they are subject to monitoring—
perhaps by setting up a highly visible surveillance system or distributing to all employees and job
applicants copies of a surveillance policy, or both. Employees might also be given an opportunity to
comment on the results of any surveillance. With respect to innocent third parties (customers), they
have to be informed that their conversations could be monitored, and they must give at least implied
consent to the monitoring.
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