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PRIVACY IN THE WORKPLACE A INTRODUCTION During the past several years there has been a growing trend among employers to monitor the actions and performance of their workers Concerns about employee productivity quality of work employee theft or misuse of company property unlawful drug use and other factors potentially affecting employee productivity combined with technological developments have increasingly led employers to use new ways to monitor employee performance A survey of 301 businesses by Macworld magazine published in its July 1993 issue found that about 22 of the businesses have searched employee computer files voice mail e-mail or other networking communications The percentage jumped to 30 for businesses with 1000 or more employees II FEDERAL AND STATE WIRETAP STATUTES Although often referred to as wiretap statutes federal and state laws on this subject cover much more than tapping onto telephone lines including eavesdropping on oral conversations and intercepting or accessing phone or electronic communications Employers considering technological methods of monitoring employee communications should first carefully examine whether the contemplated actions would be lawful under these statutes This is not a simple task since both statutes are quite complex One federal appellate court called the federal statute an amorphous Congressional enactment and stated Our search for lightning bolts of comprehension traverses a fog of inclusions and exclusions The federal statute was enacted in 1968 amended in 1986 to cover electronic communications and amended again in 1994 to protect cordless telephone communications It has two chapters one governing interception of communications codified beginning at 18 USC Section 2510 and one governing access to electronically stored communications codified beginning at 18 USC Section 2701 It provides both criminal penalties fines and imprisonment for violations and a private civil action to recover damages A person whose communications are unlawfully intercepted may sue for injunctive relief
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