I see it more and more every day: employees are recording their employers. Our trusted bestie and sidekick, the smartphone, along with other technological advances, have made recording workplace conversations easy. Such recordings can be used as powerful tools in litigation and have the ability to become public-relations nightmares.
Because of this, many clients are asking me whether they can implement broad policies prohibiting recording. The answer, of course, depends. Sweeping policies banning workplace recording may be subject to various challenges. Let’s discuss some specific concerns.
Certain States Allow Recordings
As a threshold matter, it is important to note 38 states allow recordings so long as one party consents to the recording. Conversely, 12 states require all parties to consent to a recording. Take a look at the nifty map below for details on your state.
While courts have not yet dealt with preemption strikes against these recording prohibition laws, there is a strong likelihood state laws disallowing recordings are preempted by federal laws for purposes of employment protection, such as engaging in protected activity.
Secret Recordings and Whistleblower Statutes
OSHA investigates violations of whistleblower provisions contained in a variety of statues aimed at protecting employees report violations of specific concerns, including safety, financial reform, health insurance reform, and securities laws.
Administrative review boards tasked with making final decisions on OSHA-related matters regularly find an employee recording made in good faith to gather evidence to support a whistleblower claim. In fact, the boards have found a broad range of employee conduct is allowed, such as taking photographs, making secret recordings, and performance of quality control and quality assurance functions.
Secret Recordings and Federal Nondiscrimination Laws
There is no bright-line rule regarding secret recordings and the discrimination claims. On one hand, some courts have held recordings for proposes of gathering evidence to support a workplace discrimination claim is a protected activity and should not result in employee termination. This approach, however, represents the minority view on workplace recordings as they relate to discrimination claims.
A clear majority of courts have held employers are able to lawfully terminate an employee who engages in secret recording so long as that recording violates an employee
Other courts look at the facts on a case-by-case basis. These courts tend to look at whether there were other ways to gather the same evidence that would not violate an employer’s policies.
Secret Recordings and the NLRB
In its memo issued June 6, 2018, the NLRB analyzed this issue and ultimately determined no-recording rules as lawful. The NLRB recognized such rules could have a chilling effect on recording protected concerted activities. Nevertheless, the NLRB recognized such policies would actually promote open discussion and the free exchange of ideas.
Accordingly, it looks like no recording policies may be legal and enforceable in certain circumstances.
So, Now What?
A carefully-drafted policy prohibiting secret recordings is an important first step in combatting this issue. Of course, the policy should keep in mind the conflicting views by various federal agencies and be tailored accordingly. Such policies should clarify recording is permitted to address certain grievances and areas of concern (such as whistleblower claims). The policy should also explicitly state it is not intended to chill employee rights under the NLRA.
My grandmother always said if you assume you’re always being watched, you will always do the right thing. While this caused me some nightmares early on, the point is applicable. Supervisors, managers and HR professionals should always assume they are being recorded. This is a reality in today’s workplace.
Employers should also ensure their management and HR professionals are properly trained and understand the applicable laws so they don’t misspeak or create a legal issue.
Attorney Alejandro Pérez is a skilled employment attorney who understands the real-life nuances that occur in the workplace. Mr. Pérez regularly consults clients on employment best practices and is experienced in conducting sensitive workplace investigations; delivers training on a myriad of workplace issues, including sexual harassment; and drafts sound employment policies assisting his clients in limiting liability and fostering positive employer-employee relationships.
About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.
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