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Federal Statute Prohibits Secretly Recording Employee Conversations

Court after court has overwhelming found that employees have no expectation of privacy for any of their communications in the workplace, especially if that communication is on company provided equipment. [Quon v. City of Ontario.] However, there are exceptions for that general provision. Employees do have an expectation of privacy in nonworking areas such as the cafeteria, break room, or lockers. They especially have an expection, if hidden recording devices are used for the express purpose of recording personal conversations, as the Desilets, v. Wal-Mart Stores, Inc. illustrates.

Desilets, v. Wal-Mart Stores, Inc.

In Desilets, v. Wal-Mart Stores, Inc., former store employees brought an action against Wal-Mart under the Omnibus Crime Control and Safe Streets Act, alleging that Wal-Mart had used hidden recording devices to record their private conversations. The plaintiffs were night shift employees of the Wal-Mart store located in Clairmont, New Hampshire. On at least several different days in August 1995, some of their conversations were secretly recorded on voice activated tape recorders. Playbacks took place on various days.

Wal-Mart never made any claim that the the unlawful interceptions did not take place. They admitted that they did in their Answer to the Complaint. However, they argued that the employees who taped the conversations were not authorized to do so. Further, that plaintiffs had no reasonable expectation of privacy. The trial court disagreed and found for the plaintiffs, awarding them $20,000 each and the attorney's fees.

Wal-Mart appealled the award stating that the award of $20,000 amounted to double recovery under the Omnibus Crime Control and Safe Streets Act. Further, they believe there should have been no award of attorney's fees because the jury had declined to award punitive damages. The appellate court agreed with Wal-Mart about the $20,000. They said that the statute awards $100 per day for violations with a minimum award of $10,000. The court said that the plaintiffs' were entitled to only the $10,000 each. The appeallate court disagreed with Wal-Mart regarding the attorney's fees, stating that the failure to award punitive damages was not a failed claim, but rather relief denied. In that respect, plaintiffs were entitled to the award of attorney's fees, pursuant to the statute.

Omnibus Crime Control and Safe Streets Act

The Omnibus Crime Control and Safe Streets Act provides that, "any person whose wire, oral, or electronic communication is intercepted . . . may bring a civil action to recover equitable or decalrator relief, damages and, if appropriate, punitive damages, and reasonable attorney's fees and litigation costs. 18 U.S.C.A. § 2520(a), (b).

Under the Omnibus Crime Control and Safe Streets Act, if violations of the prohibition against intercepting, disclosing, or using communications occur on 100 days or less, then the minimum statutory award of $10,000 must be paid; if, on the other hand, violations occur on more than 100 days, then the higher statutory award of $100 per day must be paid. 18 U.S.C.A. § 2520(c)(2)(B).

A complete defenses for violations of the Act include:

  • a court order
  • A request from law enforcement; or
  • A good faith determination that the action is permitted under 18 U.S.C.A. §2511.

Under 18 U.S.C.A. §2511(2)(d), it is a complete defense where a person is a party to the intercepted communication or where one of the parties has given prior consent. Employers are also exempted for listening into calls, "in the ordinary course of business."


This case demonstrates the wisdom of removing employee expectations of privacy in the workplace. It is not a violation of the Omnibus Crime Control and Safe Streets Act to intercept a communication where one of the parties to the communication has given prior consent to the interception. An appropriate policy removing employee expectations of privacy could help an employer in the defense of this and other types of privacy-based claims.

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