Does legal eavesdropping violate employees' rights?

0 Comments | Insight on the News, March 25, 1996 | by Jeffrey R. Sipe

When Sam Reynolds signed a contract with his new employer in New York, he was surprised to find an additional document requiring his signature. Not only was he agreeing to salary, hours and a host of other job parameters, he also was being asked to acknowledge the company's right to listen in on his telephone conversations "for training purposes."

"Of course, I signed," Reynolds said, explaining that he trusted the company not to invade his privacy, "but it made me feel just a little queasy."

Increasingly, callers to airlines or the customer-service departments of many companies are greeted with warnings that "this call may be monitored for quality-control purposes." Fair enough. But according to the Illinois chapter of the AFL-CIO, that state's new eavesdropping act gives employers the right to monitor employees' communications whether they are on the phone or face-to-face, business-related or not. The union's attempt to obtain a temporary restraining order was denied in January. Now it is suing to overturn the measure.

"This law is so broad," says Donald Johnson, president of the Illinois AFL-CIO chapter, "that basically management has the right to eavesdrop on an employee from the time he comes in the door, place cameras in locker rooms -- even read E-mail."

"There is language in the law that confines the eavesdropping to `educational, training, research' purposes," adds Dan Turner, president of Chicago AFL-CIO chapter. "But those terms are not all defined. They could be stretched to include almost anything."

The core of the problem is balancing an employee's right to a reasonable degree of privacy in the work-place with the company's right to know what is transpiring on its premises. Currently, the situation is governed by federal wiretap laws and state eavesdropping statutes modeled after them. Privacy lawyers long have complained that the vague language of the laws makes it difficult to nail down employee rights to confidentiality. Most agree that government does little to protect employees' privacy rights.

"Don't you think it's incredible," Turner asks Insight, "that the federal government has to get a court order for a wiretap and then is restricted to preserving only that part of the tape which pertains directly to the purpose of the tap? It's all done under court supervision. Why should an employer have so much more leeway than the government? Let's say an employee is going to AA [Alcoholics Anonymous], for example, and is discussing it on the phone. What's an employer going to do with that information?"

Congress has discussed a Privacy for Consumers and Workers Act since 1991. The proposal seeks to expand the circumstances under which employers would be required to provide a written notice to employees that would list the form and frequency of surveillance and how the information would be used. But the measure stands little chance of being passed anytime soon.

"The problems both sides are having," says Joel D'Alba, a lawyer for the AFL-CIO, "is that the state and federal criminal laws are being adapted to cover privacy issues in the workplace, and that's an unnatural fit."

An even more controversial issue involves medical records. A number of companies provide on-site health care to workers, a service meant to encourage reluctant employees to seek help on medical matters and to cut down on absenteeism. The stakes of the typical water cooler-type gossip, however, increase significantly when the whispered information pertains to a worker's health condition.

Companies have taken steps to protect confidentiality by creating separate medical records and hiring outside vendors to run their primary-care clinics. According to Alan F. Westin, publisher of the newsletter Privacy and American Business, the 4-year-old Americans with Disabilities Act "may offer some protection against an employer that uses medical information improperly to affect a worker's job status."

Not all privacy-related lawsuits concern far-reaching principles. Some are site specific. Carol Ann Murphy, a worker at a New Jersey metals factory, filed suit against her employer after she was asked to remove her blouse after setting off an antitheft alarm when exiting the factory. The alarm apparently was activated by one of her undergarments, a situation that the company had sought to avoid when it offered female employees $100 each to buy undergarments that would not set off detectors.