G. Wiretapping and Eavesdropping

In most states you have the right to be told at the start that your phone conversation, interrogation, or interview is being taped. Wiretapping and eavesdropping policies are generally regulated and to some degree prohibited by federal and state law. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 prohibits the deliberate interception of oral communications, including telephone conversations.

Conversations between employees uttered with the expectation that such communications are private (for example, in a ladies' bathroom) are typically confidential, and employers are forbidden from eavesdropping. Employers who violate the law may be liable for actual and punitive damages and criminal liability for willful violations.

Tip:If you discover that your employer has wiretapped your business or home telephone with electronic devices and is eavesdropping on your business or private conversations, you can bring a civil lawsuit and possibly file criminal charges. Speak to a lawyer to determine whether your state permits the employer to listen in on an extension telephone used in the ordinary course of business. This is sometimes allowed (depending on state law) provided you were notified in advance that your business calls would be monitored. However, once you talk about private matters, it is generally illegal for the employer to continue to listen to calls of a private nature. (Note: You may be legally fired though for discussing personal matters while on company time.)

Does an employer have the right to monitor electronic E-mail messages or intercept your private mail? Probably not, but this often depends on the facts of each case and the law in your state.

In most states, it is illegal for employers to set up cameras in a non-work area, take photographs, or use video cameras to monitor workers, especially in places where female employees have expectations of privacy (i.e., in restrooms, locker rooms, bathrooms, and lounges). It is also illegal for employers or their workers to observe you disrobe or change without your knowledge. (Author's Note: Workers generally do not have rights of privacy to stay in restrooms for extended, unreasonable periods of time, particularly after being warned of such excessive respites and when the restroom visits are not medically related.) Also, the National Labor Relations Act (NLRA) prohibits employer surveillance of employee union activity, discussions about unions, or union meetings. Speak to a lawyer immediately if you think your privacy rights have been violated.

Many states prohibit employers from using an employee's photograph for commercial purposes (such as in an advertisement or in a company brochure) without your written consent. Cases have been won by female employees who discovered their likeness on such materials but did not authorize their employers to use them.

Regarding off-duty surveillance, a few states prohibit employers from gathering and maintaining information regarding an employee's political, religious, and other nonbusiness activities. In these states, employees and former employees can inspect their personnel file for the purpose of discovering whether any such information exists. If their file contains such prohibited information, the employer may be liable for damages, court costs, attorney's fees, and fines.

Finally, as discussed in Chapter Four, the National Labor Relations Act allows employees to unionize and bargain collectively. Employers are prohibited from interfering with the exercise of these rights; they cannot fire, lay off, or demote workers who participate in such activities. Contact your union, regional labor relations board, state department of labor, or a lawyer if you believe your rights have been violated.