We’ve seen several instances in the media where a customer or bystander has recorded an employee interaction…and it’s gone viral. The Starbucks employee meltdown over a straw is the latest case in point.
But what about employees recording each other? I recently received a very interesting reader question:
I just discovered that an employee secretly recorded a conversation with someone else in our company. I wanted to know if he had the right to record the conversation.
There are so many nuances to this situation, it’s pretty darn impossible to give a definitive answer. But there are some things you should know about recording fellow employees. So, I asked Jonathan Segal, a partner with the firm Duane Morris LLP to share some insights. Jonathan has helped us many times before – this is one of my faves . As always, please remember that his comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Is the recording of workplace conversations covered by federal or state law?
[Jonathan] Under federal law, you need the consent of only one party. The same is true under most state laws. But in 11 states, such as Maryland and Pennsylvania, you need the consent of all parties or you have committed a criminal offense. Here’s a resource to find out the details of your state.
When it comes to recording conversations, does the content of the conversation matter? For instance, are there certain topics that are automatically allowed to be recorded (or absolutely cannot be recorded)?
[Jonathan] There are no per se on or off switches. For example, a court may allow an unlawful recording to be admitted into court if the recording is designed to capture perceived illegal conduct, such as discrimination. Conversely, if an individuals is recorded in a state without their consent and their consent is not required, the disclosure to others of something confidential, such as a miscarriage or other medical information, may violate the common law privacy rights of the person (even though it is not wiretap under federal or state law).
If someone asks if they can record a conversation, are there some guidelines a person should follow?
[Jonathan] I love this question. Yes, get the consent on the tape after you ask off tape. I know this is a shock to all but, sometimes after talking with a lawyer, the story of an employee changes so make sure you obtain consent before you tape and then get the consent on the record.
Can organizations put something in their employee handbooks about recordings? Should they?
[Jonathan] If an organization wants to prohibit, they should make it explicit in their handbook. However, there are many nuances that need to be considered. For example, it is safer to prohibit taping of conversations of patients and customers, for example, than of employees.
Under the National Labor Relations Act (NLRA), taping of coworkers could be protected under recent guidance from the National Labor Relations Board’s (NLRB) General Counsel. Even here, it is safer to prohibit during working time versus non-working time. There is a potential tension between the NLRB’s interpretation of NLRA and state criminal laws that require the consent of all parties when it comes to taping outside of working time, such as during breaks. I could write a blog post on this issue and, maybe I will, but suffice it to say you really need legal advice on the NLRA and other laws before you draft a ‘thou shall not record policy’ in terms of timing of publication (cannot be in response to union activity) and content (balancing competing legal and business risks).
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Last question: I know we don’t have all the details, but, if someone discovers that a “secret recording” has been made, do they have an obligation to report it? And what if someone finds out that they’ve been recorded without prior consent, do they have recourse?
[Jonathan] Pardon the formality, but I do take ethical rules very seriously. And I know you’ve already mentioned this earlier in the post, but neither this nor any other answer should be construed as legal advice or as pertaining to specific factual circumstances. Now, having said that, and I will focus on me if I were taped without my consent. I would ask 3 questions:
- Does it violate the law? The question is whether a prosecutor will prosecute. Not likely although a greater possibility if there is the disclosure of personal information.
- Does it violate company policy? I would go to human resources.
- Does it involve private information? I would consider a common law invasion of privacy claim without regard to whether the consent of all parties is required under the state criminal wiretap law. Even if the consent of only one party is required under the state criminal law, something can create civil liability if it is considered an invasion of privacy under the common law.
As always, my thanks to Jonathan for sharing his knowledge with us on this very tricky issue. For those of you who are attending the SHRM Annual Conference in Las Vegas, mark your schedule to see Jonathan’s speak on Tuesday, June 30. Here are the times and topics:
11:10a “Mad Men Era: Is it really over?”
11:50a “You’re No Shrinking Violent” and Other Micro-Aggressions
4:00p Systemic Approach for Stamping Out Harassment
Recording workplace conversations is a very delicate topic and one that I learned is in a state of flux. Human resources professionals can stay on top of the subject by following Jonathan’s insights on the Duane Morris Institute blog or following him on Twitter. You can also visit the Society for Human Resource Mangement (SHRM) Policy Action Center to receive updates on this and other critical workplace issues.
Image courtesy of Sharlyn Lauby