The use of electronic communications and internet in the workplace makes it increasingly important for Connecticut employers, especially small businesses, to understand some basic laws governing what they can and cannot do when monitoring their employees’ electronic activity.
The Connecticut Electronic Monitoring Act
The Electronic Monitoring Act requires employers to notify employees of any electronic monitoring that may be conducted in the workplace. It applies to all Connecticut employers, including private employers, without regard to size.
Employers must post a written notice (most payroll companies provide these, or you can download many for free from the State of Connecticut website here) in a “conspicuous place” (think employee breakroom) notifying employees of the types of electronic monitoring that might occur in the workplace. Electronic monitoring means the collection of information on an employer’s premises concerning employees’ activities or communications by any means other than direct observation, including use of a computer, telephone, wire, radio, camera, electromagnetic, photo-electronic, or photo-optical systems.
The Electronic Monitoring Act does not outlaw the collection of information for security purposes in common areas of the employer’s premises that are held out for public use.
Connecticut employers cannot record telephone conversations of their employees without the employee’s consent. The law provides four methods of obtaining the required consent to tape record a telephone conversation: (1) all parties consent in writing prior to the start of the conversation; (2) all parties consent orally at the start of the conversation; (3) the conversation is preceded by verbal notification at the start of the conversation that it will be taped; or (4) an automatic tone warning device is employed producing a distinct signal at 15 second intervals during the conversation. As these four permissible methods suggest, the required consent may sometimes be implied rather than actual consent.
The Federal Electronic Communications Privacy Act
Employers who monitor employee activities must comply with the requirements of the Electronic Communications Privacy Act of 1986, which prohibit the interception of or access to electronic communications, including telephones, voice mail and email. It prohibits the unauthorized interception or retrieval of any wire, oral or electronic communication, as well as the disclosure or use of information obtained from an unauthorized interception. Unlike the Connecticut statute, this federal law permits the interception of a telephone call as long as one party consents. The consent may be either express or implied. In July of this year, Senators Mike Lee and Patrick Leahy introduced legislation to modernize this law, to protect citizens’ “expectation of privacy” in certain communications. But this legislation is really targeted at warrantless “searches” of emails held by third party service providers, and not employer practices.
The Connecticut Surveillance Act
The Connecticut Surveillance Act prohibits employers from using electronic surveillance devices or systems for the purpose of recording or monitoring employees “in areas designed for the health or personal comfort of the employees or for safety guarding of their possessions, such as restrooms, locker rooms or lounges.”