Big Brother in the Workplace: Understanding the Legal Implications of Employee Monitoring

Many employers have an interest in monitoring the use of their phone/voicemail, e-mail and Internet systems by employees. After all, companies can be held liable for misuse of their communication systems that result in claims of sexual harassment or a hostile work environment. Additionally, inappropriate use of electronic communications can make a company's confidential information vulnerable. Due to employers' potential exposure at the hands of employees, many companies have implemented devices that record and monitor employee conduct. When deciding to monitor communications, however, employers should consider federal and state law to ensure full compliance with their legal obligations.

Federal Law

Pursuant to the Federal Electronic Communications Privacy Act (ECPA), the interception of any "wire, aural, or electronic communication" is prohibited, with some clearly defined exceptions. Violations of the ECPA can lead to fines and imprisonment for up to five years. Some exceptions to the ECPA include:

• One-Party Consent: The ECPA does not prohibit interception of communications if either the sender or the recipient gives prior consent. However, consent cannot be implied and must be given prior to the interception.
• Business Use Exception: The ECPA does not prohibit interception if it is conducted within the ordinary course of an employer's business and the employer has a legal interest in the subject matter of the conversation.

Illinois Law

Illinois law is more stringent than federal law. Pursuant to the Illinois Eavesdropping Act, "a person commits eavesdropping when he or she knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of a conversation," unless he or she does so with "the consent of all parties to the conversation of communication." Despite this language, Illinois courts initially interpreted the statute to allow a one-party exception, similar to the ECPA exception. The state legislature, however, later revised the statute to reconfirm that consent of all parties is required.

On the other hand, Illinois law does allow a business use exception. Specifically, a business engaged in marketing/opinion research or telephone solicitation may record or listen to telephone conversations for the purpose of "service quality control, education or training of employees." If any recording authorized by this exemption results in the recording of a conversation that does not relate to the specific business purpose allowed, the recording must be destroyed as soon as practicable.

Violation of the Illinois Eavesdropping Act is a felony offense and punishable by up to five years of imprisonment. There are also civil remedies available in Illinois to individuals whose conversations are subject to eavesdropping.

Due to the federal and state laws that address employee communications, it is advisable to confer with legal counsel before implementing a company policy or procedure to monitor telephone calls, e-mails or other electronic communications.