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by Mike Bishop J.D.

 

Dear Rita:

We recently met with an employee who has had a long history of not performing their job responsibilities as expected and of showing reluctance to accept our guidance to improve and meet expectations. At this meeting, we planned to give the employee a final written warning.

During the meeting, we raised the subject of an earlier conversation where the employee was given a specific verbal warning. When we mentioned that we had provided this verbal warning, the employee said, “No, you didn’t,” pulled out their cell phone, and to our utter surprise started to play a recording of this earlier meeting.

We told the employee to stop playing the recording. When we asked, “Did you ask our permission to record this conversation?” the response was “I don’t have to!” They also said, “For your information, I’m also recording this conversation.”

At that point we were so confused and, frankly, upset by this situation. We had never faced anything like this before. We gave the employee the final written warning and ended the meeting.

We never thought that our employees would secretly record our conversations, although there have been a number of times, in retrospect, when we wished we had recorded some of those conversations.

We want to discipline this employee for this unauthorized recording of our conversations but are concerned about the admonition “I don’t have to” in response to asking permission to record.

What are our options?

Sincerely,

Shhhhhhh!

 

Dear Shhhhhh!

You have just encountered one of the challenges that the modern world of technology has presented to the workplace.

There is no question that anyone with a cell phone now can record, in either audio or video, anything and anyone, anywhere, and anytime. Most of us would find unauthorized recordings, anywhere—especially in the workplace—to be disruptive of spontaneity of communication and a serious invasion of privacy. But depending on the state your nonprofit is located, the employee’s response of “I don’t have to!” may be correct.

One Party vs. All-Party Consent

Both federal law and most state laws prohibit, to some degree, recording conversations with others without consent. The degree of that consent varies by state and sets the ground rules for what can legally be done in the workplace. For example, most states require only one party in a conversation to consent to a recording. This one party can be the recording party, so if that person “consents” to a conversation being recorded by pressing the record button, the other party’s (or parties’) consent is unnecessary, and the recording is not contrary to that state’s law.

There are some other states, such as California, Pennsylvania, and Illinois, which require “all-party consent” for recording conversations. This means that every party in a conversation must consent to be recorded or that recording is illegal. See this resource: Laws on Recording Conversations in All 50 States.

If you are in a one-party consent state, the consequences of this rule lead to what you experienced with this employee: The employee is free to record other employees and supervisors in work-related discussions and supervisors can also record employees as well.

If you are in an all-party consent state, on the other hand, it is easier to control such recording since without the consent of all, the recording is per se illegal. In these states, you can discipline for secret recording.

Protected Activity

It is also important to point out that several government agencies say that secret recordings, even in all-party consent states, may serve as evidence of employer wrongdoing. For example, Equal Employment Opportunity Commission has held that these recordings can be used as evidence to establish employer harassment and discrimination. After all, what could be better evidence to prove discrimination than to hear a supervisor make discriminatory comments? Similarly, the Department of Labor has stated that under some circumstances, recording conversations relating to workplace safety may be protected whistleblowing activity.

Thus, dealing with the employee who wants to record conversations in the workplace can be problematic. Most commentators suggest that a policy prohibiting workplace recording is an important step in maintaining some control over these activities. However, such policies may not be enforceable in one-party consent states. Indeed, policies that prohibit recording run the risk, in any state, of being found unenforceable by the National Labor Relations Board (NLRB). The problem arises if the policy tries to suppress what the NLRB finds to be protected activity, activities such as:

  1. Recording images of protected picketing

  2. Documenting unsafe workplace equipment or hazardous conditions

  3. Publishing discussions about the terms and conditions of employment, including discussions with management

  4. Documenting inconsistent application of employer rules

  5. Recording evidence to later use in judicial or administrative proceedings

 

Perhaps the only effective policy prohibiting recording is one that says, in essence, “Don’t do it,” but that also makes clear that the prohibition doesn’t apply to any protected activity such as recording violations of employees’ legally protected rights. One thing that might be enforceable in any policy is the requirement that if a party in a conversation is contemplating recording that conversation, the recording party should notify the other parties of this intent and also request their consent for any such recording.

Like the technology that gave rise to the ability to freely record conversations in the workplace, the law attempting to balance the interests of employees to record what happens in the workplace and the privacy rights of unsuspecting participants is in a state of continual flux. It is best to leave drafting an effective policy against unauthorized recordings and dealing with employees who do record to an experienced employment counsel knowledgeable about the laws of your state. Such counsel can also offer you additional guidance on the issue, in light of your state’s requirements.

There is no question that the prospect of being recorded during everyday conversations in the workplace is daunting. It is likely to inhibit genuine and spontaneous conversations, not to mention relationships between employees. At this point, while some laws do serve to prevent these consequences, many do not. We should all keep a careful eye on the technologies and the laws as they evolve over time.

 

Note:
Tennessee: Is a one party consent state: It is not unlawful for an individual who is a party to or has consent from a party of an in person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious or criminal act. An individual may also disclose the content of any electronic communication that is readily accessible to the general public. (Tenn. Code Ann. § 39-13-601), (Tenn. Code Ann. § 39-13-604), (Tenn. Code Ann. § 40-6-303)


Virginia: Is a one party consent state: It is not unlawful for an individual who is a party to or has consent from a party of an in person or electronic communication to record and or disclose the content of said

communication. (Va. Code Ann. § 19.2-62)

 

Note: The following is a general sample employee recording policy that may be used in your organization. Please note the comments following this brief policy language.

Sample:
The following three sample policies show how employers can try to nip the problem of recorded conversations at work in the bud:

Unauthorized electronic surveillance of employees is disruptive to employee morale and inconsistent with the respectful treatment required of our employees. For this reason, no employee may record the conversation of another employee without his or her full knowledge and consent.

No employee may record, by any means, a conversation with another employee unless all of the following criteria are met:

  1. A legitimate purpose for the recording.

  2. A recording device in plain view.

  3. Written authorization from the supervisor of the employee who wishes to record the conversation.

 

Secret recordings are strictly prohibited unless authorized in writing by legal counsel. A violation of this provision may result in disciplinary action, including termination.

About the Author: Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio.