George Orwell immortalized the notion of an all-seeing and intrusive government as “Big Brother” in his classic novel “1984.” The recent Supreme Court decision in Carpenter v. United States reminds us that Big Brother does, in fact, exist. And some of the same issues that arose in Carpenter can arise at your tire dealership.
For those of you who don’t read Supreme Court decisions as part of your normal workday, and why would you, here’s the Carpenter case in a nutshell: Every time your phone connects to a cell tower, it generates a time-stamped record called cell site location information (CSLI). Timothy Carpenter was convicted for four robberies, in part because his CSLI placed him near the scene of those four robberies at the time they were committed.
In short, Big Brother was watching. Carpenter was able to get his conviction overturned, arguing that his CSLI could not be obtained without a warrant based upon probable cause. Five justices agreed and today he is a free man (who, presumably, will never again take his cellphone to “work”).
We live in a connected, archived digital world. What rights do you have to listen to, record and review employee and customer communications in such a world? What can you do as Big Brother?
The short answer is “a lot.” But there are legal rules and limits to such behavior, as well as ethical and business considerations.
Incoming calls to your company
Incoming calls to your company may be monitored and recorded, provided you notify callers of this fact. We are all familiar with the standard “This call may be monitored or recorded” disclaimer when we dial a customer service number. If you intend to monitor or record incoming phone calls, you should adopt this practice.
In addition, employees need to be made aware of this fact. Putting it in writing is best; it may be included in your company’s employee handbook, and a process put in place to document that the employee received it and agrees to be bound by its terms.
Outbound calls from your company
Outgoing calls are more difficult to monitor or record than inbound calls for the obvious reason that the employee making the call must provide the disclosure. Ensuring that is being done is difficult, and the downside is huge: allegations of illegal wiretapping.
When it comes to consent to recordings, there are two main positions: one-party consent and all-party consent. In states with the former, only one party to the recording (presumably the caller) needs to consent to the recording.
The law permits electronic surveillance of employee emails and phone calls, but only within a limited framework of federal, state and local rules, and not without serious ethical and business concerns.
If you are in an “all-party” state, everyone on the call must know of the recording and consent to it. Since employees do not always make the required disclosure, most employers in all-party consent states only monitor incoming calls to avoid litigation.
Reasonable expectations of privacy and the ECPA
Employees have no reasonable expectation of privacy even when employers have promised it. In Smyth v. Pillsbury (1996), the court held that an employer could read personal emails even when it had told employees it would not.
In Quon v. City of Ontario (2010), the Supreme Court held that a police officer had no expectation of privacy in the text messages he sent over an employer-issued device, even though his commanding officer promised him his messages would not be monitored. The court reasoned that the officer should have ignored what his commanding officer told him and relied upon the boilerplate language in a form he was given with the device.
Tire dealers have a legitimate interest in ensuring their employees treat customers well on the phone and don’t make misrepresentations in those calls. From this flows the general right to monitor and record calls as described above. There is a federal law, however, that puts some limitations on that right. The Electronic Communications Privacy Act (ECPA) restricts individuals and organizations, including tire dealerships, from intercepting personal wire, oral or electronic communications.
Under the ECPA, even if a call is being monitored for legitimate business reasons, if a personal call comes in, the employer must hang up as soon as it becomes obvious the call is personal. You may monitor a personal call only if the employee knows the particular call is being monitored — and consents to it.
All of this assumes the calls (or emails) are passing through your company’s phone equipment or computer networks. Recording private calls made on employee-owned cellphones remains a very big no-no, unless the employee consents.
What if employees consent to having their own phones monitored? If they consent, you could install some truly creepy software. How creepy? Imagine every text message they send, every website they visit, and every phone call they make being logged and forwarded to you.
Even their locations can be recorded and disclosed. Think I’m making this up? Check out Mobile-Spy.com and see for yourself.
Video monitoring
When I was a boy (back in the Carter administration), video monitoring was fairly rare. Cameras were big and clunky, low-resolution, and black and white. Recording happened on VHS or Betamax tapes, which were limited in their capacity. And all of it was very expensive, so video recording was most often seen in connection with high-security environments and, of course, casinos.
But now, video recording equipment is small, high-resolution, and in living color. It is also cheap, and therefore showing up in more locations, such as building lobbies, 7-Elevens, and along highways — and, not-to-mention, tire dealerships.
It is now possible for you to record and store virtually everything that happens anywhere on your premises. Keeping an eye on your warehouse, storage areas and in the service bays seems innocuous enough. But how about the restrooms?
This gets us back to the concept of reasonable expectation of privacy. The expectation of privacy in public spaces is low. The expectation of privacy in the bathroom is high. Some of your company’s space probably falls somewhere in between those two extremes.
If you’re conducting video surveillance on your dealership’s property, post that fact around the perimeter and near the building entrances.
What all this drives home is that Big Brother is, in fact, watching. And if you want to be Big Brother, you need to be very, very careful.
YOU"RE ON MY DIME
Consider the sample text below if your dealership’s employee handbook does not include a section on electronic surveillance. Please note this sample policy language is for illustration only. It should not be used without the review and approval of dealer counsel. State and local privacy laws may vary.
Workplace monitoring
Workplace monitoring may be conducted by Tire Dealer to ensure quality control, employee safety, security, and customer satisfaction.
Computers furnished to employees are the property of Tire Dealer. As such, computer usage and files may be monitored or accessed.
The dealership telephone system and equipment are also the property of Tire Dealer and are to be used for business purposes only. To ensure that the dealership telephone system is used only for business purposes, and to verify that such equipment is not used to misrepresent any material fact to actual or prospective customers, all calls may be monitored. Inbound calls may also be recorded, but only with prior notice to the inbound caller. Knowledge of this policy and acceptance of any inbound calls shall constitute employee consent to this policy.
Tire Dealer may conduct video surveillance of non-private workplace areas. Video monitoring is used to identify safety concerns, maintain quality control, detect theft and misconduct, and discourage or prevent acts of harassment and workplace violence.
Because Tire Dealer is sensitive to the legitimate privacy rights of employees, every effort will be made to guarantee that workplace monitoring is done in an ethical and respectful manner.
Internet usage monitoring
Employees should not have the expectation of privacy while using the internet, whether business related or for personal use. Your postings can be reviewed by anyone and Tire Dealer reserves the right to monitor comments or discussions about Tire Dealer, its employees, customers and the industry, including products and competitors, posted on the Internet by anyone, including employees and non-employees.
Tire Dealer may utilize blog-search tools and software to monitor forums such as blogs and other types of personal journals, diaries, personal and business discussion forums, and social networking sites.
