09 Jan Human Resources Tips: Recording in the Workplace

Is it against the law for employees to record private conversations with co-workers, supervisors or executives without their consent? The answer is: It depends. There are a variety of laws that come into play, which vary based on locality, when analyzing workplace recordings. With the proliferation of smartphones and other advanced recording technology, secret workplace recordings have become more prevalent than ever. Such recordings can lead to costly lawsuits and an uncomfortable work environment for employees.

To prevent these recordings from happening at your company, you should have a basic understanding of employee rights under the National Labor Relations Act (NLRA), as well as other federal and state laws surrounding workplace recordings. Employers should check with legal counsel to help navigate through these complex laws and, if applicable, assist employers in establishing workplace policies and procedures with regard to workplace recordings.

Background

There are a variety of reasons why an employee may choose to secretly record a conversation at the workplace. Depending on the consent of the parties involved, there are laws in place that allow for secret conversations to be legally recorded—conversely, there are laws that prohibit individuals from recording secret conversations. When addressing workplace recordings, it’s important to first identify your state’s specific consent requirements.

Most states have determined whether they allow one-party or all-party consent for audio and/or video recordings. One-party consent means that only one person being recorded has to consent—that could mean the person who is doing the recording is the only one who needs to consent. Whereas all-party consent means that all people in the recording must agree to being recorded.

Recording Communications and Surveillance Laws by State

Laws regarding recording communications and surveillance vary by state. The majority of states require that only one party needs to consent to a recording—whereas 13 states require all-party consent. All-party consent states include: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Although Vermont has no official statue addressing secret recordings, it is commonly considered an all-party consent state. Despite your state’s consent laws, it’s still good practice to consult with legal counsel to determine if any precautions need to be taken, such as enforcing a no-recording policy, to protect your company and employees from secret recordings.

Can I Prohibit Employees From Recording Conversations at Work?

While employees might have the right to make an audio recording in the workplace, employers do not have to allow recordings, even in one-party consent states. In fact, the National Labor Relations Board has deemed it generally permissible for employers to prohibit employees from recording conversations at the workplace. Many legal experts advise that companies create a no-recording policy. Prohibiting recordings in the workplace can strengthen an employer’s defense in litigation if the recording goes against company policy. However, when creating a no-recording policy, you should consult with legal counsel to ensure compliance with the NLRA, in addition to other federal and state laws.

Tips for Handling Secret Employee Recordings

Instances may arise where secret recordings are not viable evidence in a lawsuit. However, if unflattering recordings of your company surface, it may negatively affect the image of your business. Although having no-recording policies can decrease the likelihood this occurs, companies can never fully prevent employees from recording private conversations. To avoid negative recordings of you and your employees, consider the following action items:

• Always assume that you are being recorded—especially during disciplinary meetings.
• If you notice you are being recorded, carefully state you do not wish to be recorded. If the employee refuses, end the meeting and seek legal advice.
• Ensure all employees receive proper workplace harassment and discrimination training to avoid inappropriate work conversations.
• Promote a positive work environment for employees.

For more information about workplace recordings and policies, contact Barrow Group today.