Workplace monitoring has become commonplace. Employers need to be aware of the federal Wiretapping Act which prohibits the interception of stored voice-mails and live telephone calls. There are exceptions for employers.


Employers may monitor telephone communications if it is done as an ordinary course of business. The exception is designed for employers who need to maintain quality control of their telemarketing or customer service operations. Other legitimate business exceptions include protection of trade secrets, and ensuring compliance with non-compete agreements.


The Electronic Communications Privacy Act (ECPA) is an amendment to the Wiretap Act, extending oral and wire communications to electronic communications. It’s the only federal law that directly governs monitoring of electronic communication in the workplace of private businesses.


The ECPA prohibits an employer from intentionally intercepting an employee’s oral, wire and electronic communications. There are two exceptions to this prohibition. The first is when the company demonstrates a legitimate business purpose. The next is when the employee consents to monitoring. The important distinction with this exception is that the employer can extend the consent beyond business communications.


ECPA’s definition of electronic communications does not include electronic storage of these communications. Viewing stored emails is like searching through an employee’s files and is not protected by the Act.


It’s important to note that employees do have some right to privacy. Many cases have been lost when the employer listened to personal conversations. The employer must have a business reason to monitor. The employer should not listen once the call is obviously private.


In Stengart v. Loving Care Agency, Inc. (2010), the court held that the employee had a reasonable expectation of privacy because she communicated with her attorney using her password protected Yahoo account while at work on to communicate with her attorney.


The right to privacy can be extended to personal space within an employer’s building if an expectation of privacy exists. In the Tidwell v. State of Georgia case, an employee had established living quarters on the premises. During an attempt to issue an arrest warrant on another man; drugs were found in this employee’s locker. Because the employee had the exception of privacy and the sheriff did not have a warrant to search his locker; the evidence was dismissed.


Employers may need to consider conducting a search in the event of missing property or suspected contraband.


Employers should have a well-communicated policy that reminds employees that there is no expectation of privacy. Reinforce that policy by stating locks are either issued by the company or personal lock combinations or keys must be given to a company representative. The employer is responsible for communicating the expectation of privacy doesn’t exist.


Employers need a policy informing employees the employer reserves the right to conduct searches to monitor compliance with rules concerning security of company and individual property, drugs, alcohol and other contraband items. The policy should enable searches of the employees, their work areas, vehicles on the premises and other personal items. Submission to reasonable searches can be a condition of employment. The policy can state that after fair warning, refusal to submit to a search or test can lead to immediate discharge.


However, the practice of periodic searches of the premises is not a reasonable method to drive home the lack of privacy message. Again, the employer should have a business need to conduct a search and the search must be reasonable.


Bungled searches can entitle employees to claims of assault and battery, false imprisonment, intentional infliction of emotional distress and defamation. An employer should never force an employee to submit to a search. It is not wise to hold the employee until the police arrive. An employee should never be touched without consent. And calling the employee defamatory names such as “thief” should be avoided.


These caveats are common sense. However, a body of case law exists resulting from poorly managed searches.

Legislative Update

PPACA



The Patient Protection and Affordable Care Act (PPACA) jumped another hurdle recently when the U.S. Supreme Court upheld the individual coverage mandate and rejected an expansion of Medicare coverage.


Employers must continue to comply with reforms already in effect and now prepare to report employer coverage on employees’ 2012 W-2s. In 2013, employers must cap dollar limits at $2500.00 on health care flexible spending arrangements (HFAs) and increase Medicare withholding on employees earning more than $200,00.00.


Employers need to stay aware of the developments especially as deadlines for requirements continue to unfold. The next important date is September 22, 2012.


Any employee enrolling or re-enrolling in health care benefits on or after September 22, 2012 must be provided concise and comprehensible information about the benefits and coverage by the insurers and group health plans. This piece of the legislation is designed to provide consumers with the information required to make healthcare coverage decisions that best suit their needs.


Two documents are required to be provided. The first is the Summary of Benefits and Coverage (SBC). The second is a Uniform Glossary of Terms. The SBC has twelve requirements, including a description of the cost- sharing requirement including deductibles, co-insurance, co- payments, exceptions and limitations.


The rule requires a separate SBC for each and every benefit design option, including family size, cost-sharing levels, and network designs.

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