March 13, 1998 98-R-0431
FROM: Sandra Norman-Eady, Senior Attorney
RE: Employee Privacy
You asked for a summary of Connecticut and federal laws concerning privacy in the workplace. You are only interested in laws governing employee surveillance and telephone and computer monitoring by employers.
Connecticut has statutes that specifically prohibit employers from monitoring employees at certain locations and from overhearing certain of their conversations. A more general eavesdropping statute also applies to most employers. Connecticut does not have a statute that specifically addresses computer monitoring.
Connecticut's surveillance law forbids employers from (1) engaging in electronic monitoring in areas designed for the health or personal comfort of employees or for the safeguarding of their possessions, such as restrooms, locker rooms, or lounges and (2) intentionally overhearing or recording employment contract negotiations.
It is illegal in Connecticut for most people, including employers, to intentionally eavesdrop on, or tamper with, another person's telephone conversation without consent. The law also prohibits certain people from recording a third party's telephone conversation unless all parties to the communication know that it is being recorded.
The only federal law limiting employer surveillance is the 1986 Electronic Communications Privacy Act that bans eavesdropping on spoken personal conversations. The law does not, however, create a general right to privacy in telephone or e-mail communication. Employers can monitor business telephone and non-spoken communications.
STATE ELECTRONIC SURVEILLANCE LAWS
It is illegal for business owners or partners or private or public officers to operate any electronic surveillance device or system for the purpose of monitoring their employees in areas designed for the employees' health or personal comfort or for the safeguarding of their possessions, such as restrooms, locker rooms, or lounges. It is also illegal for employers, employees, or their agents to intentionally overhear or record employment contract negotiations. Anyone who violates the former is subject to a $500 fine for a first offense, a $1,000 fine for a second, and 30 days imprisonment for a third. Anyone who violates the latter is subject to one-year imprisonment, a $1,000 fine, or both (CGS § 31-48b).
It is illegal for anyone, other than criminal law enforcement officials engaged in the lawful performance of their duties, to unlawfully wiretap or engage in the mechanical overhearing of a conversation. Eavesdropping in this manner is a class D felony punishable by one to five years imprisonment, up to a $ 5,000 fine, or both. A person unlawfully wiretaps or engages in mechanical overhearing if he is not specifically authorized by law to do so. A person mechanically overhears a conversation when he uses an instrument, device, or equipment to intentionally overhear or record a conversation without the consent of at least one party to the conversation (CGS §§ 53a-187 and –189).
Recording Private Telephone Conversations
In most cases no one, including employers, may record a telephone conversation without the knowledge of all parties to the conversation. Knowledge can be established by: (1) orally announcing, in a prerecorded message, to all parties to the conversation at the beginning that it is being recorded; (2) prior consent; or (3) supplying an automatic and distinct signal repeated every 15 seconds while recording equipment is used. Anyone who violates the law may be sued for damages, costs, and reasonable attorney's fees.
The following people can record telephone conversations without the knowledge of the parties to that conversation:
1. law enforcement and public safety personnel, including people working with law enforcement officers, engaged in the lawful performance of their duties;
2. anyone who receives threats of extortion, bodily harm, or other unlawful requests or demands;
3. anyone who receives calls repeatedly or at an extremely inconvenient hour; and
4. FCC-licensed radio personnel recording for rebroadcast or programming (CGS § 52-570d).
Tampering with Private Communications
A person tampers with private communications when (1) he gets a telephone or telegraph corporation employee or representative to give him the contents or nature of a telephone or telegraphic communication without the consent of at least one party to the conversation or (2) he is a telephone or telegraph employee or representative and knowingly gives another person the contents or nature of telephone or telegraphic communication without the consent of at least one party. Tampering with private communications is a class A misdemeanor punishable by up to one year imprisonment, up to a $2,000 fine, or both (CGS § 53a-188).
Communication Carriers and Third-Party Communications
If a communication common carrier's facilities are used to transmit a wire communication, the carrier's switchboard operator, officer, employee, or agent may intercept, disclose, or use the communication in the normal course of his employment when necessary to carry out his duties or to protect his employer's rights or property. But carriers may use service observing or random monitoring only for mechanical or service quality control checks (CGS § 54-41q).
The federal law provides, in pertinent part, that it is illegal to intentionally:
1. intercept, try to intercept, or get another to intercept or attempt to intercept any wire, oral, or electronic communication;
2. use, attempt to use, or get another to use or attempt to use any electronic, mechanical, or other device to intercept any oral communication when (a) the device transmits a signal or communication by radio or other such communication, (b) the person knows or has reason to know that the device was sent through the mail or interstate or foreign commerce, (c) the device will be used or attempted to be used on the premises of, or for the purpose of obtaining information relating to the operations of, any business or other commercial establishment engaged in interstate commerce, or (d) the person acts in any U.S. territory or possession;
3. disclose, use, or try to disclose or use the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of the act; or
4. disclose or try to disclose to another the contents of such communication lawfully intercepted, knowing or having reason to know that the information was obtained in connection with a criminal investigation and with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation.
The penalty for violating the act is up to five years imprisonment. But the act contains exemptions from liability if one party has given prior consent to the taping, the conversation is monitored through use of a telephone extension during the ordinary course of business, or a communication service provider monitors in the normal course of employment (18 USCA § 2511). When determining “business use” exceptions, courts have either examined the circumstances surrounding the monitoring, including whether there was actual notice and whether the level of monitoring was justified, or looked at whether the communication monitored was “business” or “personal” (see Simmons v. Southwestern Bell Telephone Co., 611 F.2d 342 (1978 W.D. Oklahoma); Epps v. St. Mary's Hospital of Athens, Inc., 802 F.2d 412 (1986 C.A. 11 Georgia)).