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Legal issues haunt telecomm managers.


If two lawyers can disagree on any point of law, a victim will be torn apart in the dispute. If thecase involves E-mail, or call accounting, or worker productivity on a network, the victim is likely to be you.

While your firm will be sued for big money, you'll suffer major heartburn at best--and could end up without a job or without your freedom.

It isn't far-fetched as it may seem.

Consider the case of Linda Ellerbee, the famous TV reporter.

Her story involves mis-routed E-mail. As she tells it, she sent a personal note to a friend through the Associated Press system.

The note said some nasty, nasty things about several folks in Texas, her boss, and the Dallas city council.

By unfortunate accident in the network center, the message was distributed to every AP outlet in four states. Ellerbee lost her job. The potential for legal action--by Ellerbee, her boss, the company, those embarassed by the note--was huge. Ellerbee says she was fired, "Only because the AP's legal department told them it absolutely was against the law to shoot me, no matter how good an idea it might be."

Service Observation

Or consider the liabilities you face as manager of an "electronic sweatshop," as workers term telemarketing and other quota-based offices.

Your people monitor sales pitches. An employee gets fired for not completing enough calls, or claims the pressure caused a nervous breakdown.

9To5, a working women's organization, studied almost 700 employees from 49 companies in 12 industries. They found 81% of respondents said monitoring makes their job stressful. Over two-thirds said their employer uses monitoring results as a basis for disciplining employees; 23% said individual statistics are posted publicly.

9To5 pushes guidelines related to workplace monitoring since there is not a lot of statutory law in this area.

The lacke of legal guidance is because telecomm and networking are tricky areas to legislate.

"Invasion, stress and fear" are three words which characterize monitored employees, 9To5 says. Their data is gathered from their toll-free Computer Spying Hotline and research studies.

No one questions that the employer has a right to know what the employee is doing on company time.

But with current programs an employer might as well be sitting in an employee's lap for eight hours. For that reason, some workers groups push to gather collective work statistics rather than individual records.

The question of the legality of tracking how many bathroom breaks an employee took is quite nebulous.

When it becomes intrusive or embarassing, the employer likely has gone too far. The million dollar question is: "What is 'too far'?" A million dollars is a lot of money. And personal privacy is an important issue.

The International Communications Association took seriously changes made in privacy laws last year. ICA worked with the Justice and Commerce Departments. The outcome was stricter standards set for carriers and service providers than for users in private firms.

But those standards still are tough.

The wise manager will have established grievance procedures to handle charges of unfairly or incorrectly collected data.

At least two ghosts involving call accounting system lurk in the darkness to haunt managers--people fired for call abuse, and workers fired for not making enough calls or not making the "right" calls.

Facing Abusers

Robert P. Evans, investigation manager for Smith Security, Troy, Mich., notes the legal difficulty of charging an employee with phone abuse unless you really can place them at the phone at the moment the questionable call was made.

His firm specializes in industrial security. "On a plant floor," he says, "it's almost impossible since so many people have access to phones."

As a practical matter, he generally does an interview with the suspect, and the person breaks down and admits to the charges.

The company gets restitution, lets the employee go, or takes other appropriate action.

This sort of "nickel and dime" pilfering often is overlooked. Some employers have policies about phone use.

The U.S. government, the largest employer of all, has a written policy about personal calls. It allows calls for any emergency, to spouse, child or child's daycare center to check on how they are--even if they're long distance--as long as they are brief.

"Brief" is not defined.

Employees are allowed to call home "on the average of once a day" when working away from home. Use of the Federal Telecomm System is encouraged in those cases. Other calls, Uncle Sam says, should be charged to the employee's credit card or home phone.

Similar guidelines can be found in industry, but guidelines don't prevent personal long distance calls.

In practice, supervisors usually look the other way unless the abuse is blatant. 900, 976, or repeated lond distance calls to a non-business number usually are causes for action. But, should the employee dig in against charges of calling a Dial-A-Porn line, you'll feel the cold, haunting spirit of the law get uncomfortably close.

Lewis Maltby, coordinator of the American Civil Liberties Union's National Task Force on Civil Liberties in the Work Place, says employers generally have nothing to fear frmo dismissing an employee for phone abuse. The U.S. is an "employment at will" nation; workers can be fired for far less.

Problems can arise, he says, when an employer goes beyond monitoring and starts to compile persoanl information based on call accounting records or service observation.

"There is nothing illegal about service observation if there is a valid business motve," Maltby maintains. The grey area comes when a monitored call turns out to be personal and the employer continues to listen.

If the employee knew the call could be monitored, and had another line to use, then the employee basically consented to be monitored.

In the process of building a case of phone abuse using call accounting records, the employer necessarily will find out a lot about the employee's personal life: stockbroker, restaurants, perhaps girlfriends or bookies. "You'd be looking at invasion of privacy if you got in too deep."

What about personal work done on a company PC? Most employers seem to think they have a right to dip into that database.

One way to keep legal spirits from haunting your operation is to avoid potential problems in the first place.

If you are concerned with productivity at a smaller operation, consider that just listening in on the telephone calls of your employees has limited value. Why don't you try something different, like taping the telephone sales pitches of your employees and reviewing them later with them? This is more effective, as it cuts the sting of eavesdropping.
COPYRIGHT 1990 Nelson Publishing
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1990 Gale, Cengage Learning. All rights reserved.

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Author:Harler, Curt
Publication:Communications News
Date:Oct 1, 1990
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