Eavesdropping Employer Caught

published in Oklahoma Employment Law Letter | December 1, 2008

By Charles S. Plumb

There are good reasons and not so good reasons for employers to want to keep track of communications in the workplace.  The communication could be electronic, telephonic or oral.  An Edmond, Oklahoma employer recently learned it could find itself in hot water, if it monitored meetings and communications without first getting an employee’s consent.

Brenda Hammers began working for L.A. Weight Loss Centers in Edmond, Oklahoma as a sales consultant.  Hammers would meet with potential clients who were seeking to control their weight and discuss a program of dietary management, including customized menus, consultations and dietary supplements.  If these discussions went well, the customer would sign an Enrollment Agreement, committing to a weight loss program and plan.

“Testing, One, Two, Three”

Hammers was supervised by Suzanna Reed.  In August 2006, Sylvia Smith came to the Edmond L.A. Weight Loss Center to look into a weight loss program.  Smith spoke with Hammers.  Before the initial consultation with Smith, Supervisor Reed told Hammers that Reed would eavesdrop on Smith and Hammers’ discussion through the use of a baby monitor concealed in the interview room.  When Hammers objected to the use of the baby monitor, Reed assured Hammers the device had been disabled.  Customer Smith and Hammers met for approximately two hours.  The consultation included discussions of personal, sensitive weight loss issues.  At the conclusion of the meeting, Smith signed an Enrollment Agreement committing to the L.A. Weight Loss Diet Plan.  The Enrollment Agreement included a final sentence stating:  “I acknowledge that my counseling sessions may be monitored for quality assurance purposes.”

Sometime later, Hammers learned from a co-worker that her meeting with Smith had been monitored.  Not exactly what Hammers or her customer had in mind.  According to Hammers, soon thereafter, “things went downhill” for her at work.  Hammers received a verbal reprimand, a written reprimand and eventually a demotion.  Hammers explained to her area manager she was concerned about her job and asked for a transfer to another L.A. Weight Loss Center.  A month after her transfer request, L.A. Weight Loss Center terminated Hammers, contending she sold a dietary supplement to a medically ineligible client.

Hammers filed a lawsuit in Oklahoma City’s Federal District against her former employer claiming, among other things, her former employer, L.A. Weight Loss Center, had violated the federal wiretap statute and had invaded her privacy under Oklahoma law.

Federal and Oklahoma Privacy Rights

The federal wiretap statute, 18 U.S.C. § 2510, et seq., prohibits intentionally intercepting another person’s wire, oral or electronic communications.  It is not a violation of the federal wiretap statute, if one of the participants in the communication or conversation gives prior consent to that monitoring.  Oklahoma law also has its own wiretap statute – 13 O.S. § 176.1 et seq.  The Oklahoma wiretap statute is very similar to the federal law.

Oklahoma law also prohibits the invasion of an individual’s privacy.  In order to pursue the invasion of privacy claim against her former employer, Hammers had to show she had not consented to the intrusion by the L.A. Center Loss Center, when her former employer monitored her discussion with Smith.  Hammer also had to show the employer’s monitoring was highly offensive to a reasonable person.

The Oklahoma City’s Federal Court decided Hammers’ Oklahoma invasion of privacy claim and her federal wiretap claim should go forward to trial and be decided by a jury.  Rather than giving consent, Hammers had objected to Supervisor Reed about the possible use of the baby monitor, when she was meeting with prospective customer Smith.  The Court also found it was important that customer Smith did not sign any consent about the possibility of “quality assurance monitoring” until after she had been talking with Hammers for two hours.

Listen Up

In many cases, there are very good reasons for a business to monitor an employee’s communications with co-workers, clients or customers.  Security or business confidentiality concerns come to mind.  Also, it may be a matter of addressing job performance or conduct issues.  It may be an accepted practice to address customer service issue or to improve customer service.  Remember:  When you are monitoring or reviewing communication – whether the communication is written, oral or electronic – you should go to great lengths to put all individuals on notice the monitoring is occurring.  Next, make sure those participants in the communication expressly acknowledge they are consenting to your ongoing monitoring.

  • Smith v. NMW – Oklahoma LLC, 27 IER Cases (BNA) 1671 (W.D. Okla. 2008)