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Yes, your employees can legally record most workplace conversations


Yes, Your Employees Can Legally Record Most Workplace Conversations

Privacy interests may outweigh the right to engage in protected activity

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Yes, there was a time when a secret recording in the workplace implied an expectation of privacy in whatever conversation was recorded. But, now, everyone has a smartphone and, with a few quick thumb taps, an easy way to audio or video record anything and everything.

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So, who among us has a reasonable expectation of privacy at work?

There may be situations in which privacy interests outweigh the right to engage in protected concerted activity.

According to the National Labor Relations Board, practically no one who works for the company.

NLRB: Workplace recordings promote protected concerted activity

In a decision issued last week, the Board concluded that an employer could not maintain a workplace rule that banned employees from recording workplace conversations, absent prior company approval.

The company’s handbook expressly stated that one of the purposes of the policy was to “eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.” The policy added that “this concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.” Ironically, however, the Board felt that this rule would have the opposite effect and discourage employees from discussing workings conditions with one another:

That the rule contains language setting forth an intention to promote open communication and dialogue does not cure the rule of its overbreadth. The Respondent’s witness testified that the rules apply “regardless of the activity that the employee is engaged in, whether protected concerted activity or not.” Thus, the Respondent has effectively admitted that the rules cover all recording, even that which is part of the res gestae of protected concerted activity. In light of the broad and unqualified language of the rules and the Respondent’s admission as to their scope, we find that employees would reasonably read the rules as prohibiting recording activity that would be protected by Section 7.

Remember, Section 7 applies to both unionized and many non-unionized workplaces. Indeed, the employer in this case was non-union.

So, can I record my co-workers?

There may be situations in which privacy interests outweigh the right to engage in protected concerted activity. For example, the Board highlighted a prior decision in which a Board majority found that an employer policy that prohibited the use of cameras for recording images in a hospital setting was ok. Similarly, there’s this Board precedent, where a panel majority struck down rules banning the use of cameras, camera phones, audio visual recording equipment and other recording devices.

Even the most recent Board decision decrying a universal workplace-recording ban strongly suggests that a qualified recording ban (e.g., trade secrets, customers, patients, and poopy sounds are off limits) would be ok. Plus, there are many states with laws requiring two-party consent for recordings.

(Although I question how far these state laws reach into the workplace anymore. For example, Pennsylvania’s two-party consent law only attaches where there is an “expectation that such communication is not subject to interception under circumstances justifying such expectation.” In today’s smartphone world, there are very few situations in which an employee having a conversation at work enjoys a reasonable expectation of privacy.)

So, add to your New Year’s HR checklist a review of your employee handbook to ensure that it is carefully tailored to restrict workplace recordings.

Eric Meyer
Eric Meyer

Management-side workplace lawyer at Dilworth Paxson LLP

Eric B. Meyer, Esquire is a partner in the Philadelphia-based law firm of Dilworth Paxson LLP. Eric is a member of the firm’s Labor & Employment Practice Group and Chair of the #SocialMedia Practice Group. He also publishes The Employer Handbook, which the ABA Journal recognizes as a top labor and employment law blog.

In addition to being a frequent lecturer around the country, among other outlets, Meyer has been quoted in ABCNews.com, NBCSports.com, AMEX's Small Business Open Forum, Inc. Magazine, Business Insurance, Entrepreneur, Mashable.com, The Wall Street Journal, and the British tabloids. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission.

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