In an age of smartphones and wearable technology, one cannot escape the possibility that he or she is being recorded at any given time. The workplace is not immune from such possibilities as employees often carry—or sometimes wear—devices with the ability to record audio and video in the workplace. Faced with the presence of such technological devices, employers often prohibit employees from any and all recording in the workplace. Employees, on the other hand, may seek to record activity in the workplace to, for example, document unsafe workplace conditions, publicize the terms and conditions of their employment, or gather evidence to support legal claims. These competing interests—corporate and individual—create a conflict between the rights of employers and employees regarding recordings in the workplace.

This conflict is further complicated by the fact that Pennsylvania law, unlike federal law, prohibits the recording of another person’s oral communication without his or her consent. Fortunately for Pennsylvania employers (as well as employers in other states with two-party consent wiretap laws), employers may draw the proverbial line in the sand with a properly drafted employee rule prohibiting recordings.

 Commonwealth of Pennsylvania v. Smith

In a recent decision, Commonwealth of Pennsylvania v. Smith, 2016 Pa. Super. 43 (February 19, 2016), the Superior Court of Pennsylvania ruled that an employee who surreptitiously recorded a conversation with his former boss using a “voice memo” application on his smartphone had violated Pennsylvania law and could be criminally prosecuted. The employee, Talbot Smith, who worked for Unilife Corporation as the company’s integrated supply chain vice president, had filed an internal ethics complaint. Shortly thereafter, he was called into a meeting with a supervisor and noticed a copy of his ethics complaint sitting on the supervisor’s desk. At that point, fearing that he would be discharged for his whistleblowing activity, Smith began recording the conversation using his smartphone’s Voice Notes application without the supervisor’s knowledge or consent. Smith was discharged during that meeting, and later filed a civil suit against his employer. During the lawsuit, Unilife learned about the recording and notified the authorities. As a result, Smith was criminally charged with violating Pennsylvania’s Wiretapping and Electronic Surveillance Control Act.

The Wiretapping Act provides that a person is guilty of a felony for intentionally recording another person’s oral communications without his or her consent. Prior decisions by Pennsylvania courts had been unclear as to whether the use of a smartphone application to record a conversation would constitute criminal conduct under the Wiretapping Act, or would instead fall under an exclusion from the statute. However, the Smith court determined that “although Smith used an app on his smartphone, rather than a concealed tape recorder, to surreptitiously record his conversation with [his supervisor], the result is the same. His actions constituted a violation of Section 5703 [of the Wiretapping Act].”

Whole Foods Market, Inc.

While the Smith decision may seem uncontroversial, employers must read it in conjunction with a recent decision by the National Labor Relations Board (NLRB), Whole Foods Market, Inc., 363 NLRB No. 87 (December 24, 2015). InWhole Foods, the NLRB determined that an employer’s nationwide policy prohibiting employees from recording conversations, phone calls, images, or company meetings with any recording device unless prior approval had been granted violated Section 8(a)(1) of the National Labor Relations Act. The NLRB determined that because an employee’s recordings could be used to further protected concerted activities, such as recording images of picketing, documenting unsafe working conditions, or documenting inconsistent application of employer rules, Whole Foods’s policy prohibiting such recordings was unlawful.

Notwithstanding the ultimate result in Whole Foods, the NLRB acknowledged that certain state laws prohibit the recording of another person without his or her consent, and that employer policies consistent with such laws would be lawful. However, Whole Foods’s policy was not limited to those states in which nonconsensual recordings were unlawful. Additionally, the policy did not refer to any such wiretapping laws. Therefore, while the NLRB in Whole Foodsindicated that an employer policy enforcing state laws prohibiting nonconsensual recordings would be permissible, the policy at issue before the NLRB was determined to have been unlawfully overbroad.

Key Takeaways

When Smith and Whole Foods are read together, Pennsylvania employers should find some reinforcement for their policies prohibiting employees from recording (including doing so by using applications on  smartphones or wearable technology) without the consent of all parties. However, these policies must be narrowly tailored and refer to Pennsylvania’s Wiretapping Act, as well as other similar state statutes, to avoid any conflict with federal labor laws.

Pennsylvania employers that are considering prohibiting unauthorized workplace recordings, including recordings accomplished via smartphones or other technological devices should be sure to draft comprehensive policies that lay out clear bases for such prohibitions. A well-written policy would likely include a reference to Pennsylvania’s Wiretapping Act and other relevant state statutes that provide a legal basis for instituting a policy against nonconsensual recordings, and set forth other important privacy and confidentiality considerations. Finally, employers with a presence in states without two-party consent wiretap laws should ensure that their workplace policies do not inadvertently violate federal labor laws.