A recent decision from the North Carolina Court of Appeals addressed whether a government employer, by the covert monitoring of a police officer’s conversations, violated the North Carolina Electronic Surveillance Act (NCESA). In Wright v. Town of Zebulon, the Zebulon Police Department conducted an “integrity check” on a police officer after several complaints that the officer had been “tipping off” drug dealers about confidential police department information. The police department conducted the integrity check by placing a transmitter under the front seat of the officer’s patrol car and monitoring the officer’s conversations. After his separation from employment for reasons unrelated to the integrity check, the former officer sued the department.

NCESA provides that a person violates the Act if, “without the consent of at least one party to the communication,” the person “willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” The statute also establishes a civil cause of action for the person whose communications are intercepted against the person or persons violating the Act. Under the Act, employers can be liable for damages, attorney’s fees, and associated litigation costs.

In addition to the “consent exception” that may apply when employees have consented to an employer’s monitoring of their electronic communications, public or private employers who provide electronic communication services to their employees may also escape liability under the Act by meeting a “business use exception” in the statute. The "business use exception” provides that it is not unlawful for an:

“officer, employee, or agent of a provider of electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of employment while engaged in any activity that is a necessary incident to the rendition of his or her service or to the protection of the rights or property of the provider of that service.”

In Wright v. Town of Zebulon, the court did not apply or discuss the “business use exception,” but instead assessed whether the police department’s interception of the officer’s oral communications were “willful” under the Act. Since the term “willful” is not defined by the statute, the Court of Appeals deferred to a federal court’s interpretation of “willfulness” under the Federal Wiretapping Act. Noting that the federal courts have construed “willfully” to mean “more than intentional,” the Court of Appeals held that “willfulness” requires that the conduct be “done with a bad purpose,” “without justifiable excuse” or “stubbornly, obstinately, or perversely.” The Court of Appeals reasoned that because the police department’s integrity check was motivated by a concern that the officer’s alleged conduct would disrupt police operations and endanger public safety, the department did not act with a bad purpose or without justifiable excuse. Therefore, the court held that the police department did not act “willfully” and did not violate the Act.

While this case involves a government employer and public safety issues, it provides private employers with a valuable example of how North Carolina courts are analyzing claims under NCESA. Employers should always use caution when monitoring employees’ communications, whether oral or electronic. Although the Act provides a “consent exception” and a “business use exception” that may be available to employers in certain situations, it also expressly provides that a provider of a wire or electronic communication service “may not utilize service observing or random monitoring except for mechanical or service quality checks.”

Before monitoring or recording the oral or electronic communications of employees, employers should ensure that the surveillance is in compliance with NCESA and other applicable state and federal laws. In addition, employers should consider having a policy in place to govern employee use of the company’s electronic communications systems and notify employees of possible monitoring of their communications on the company’s systems.