As the NFL playoffs approach, we’re reminded of just how crucial are instant replays – recordings of what happened on the field, to confirm (or second-guess) the referee’s call. Imagine how controversial instant replays would be if the recordings were made not by an impartial source, but instead by the opposing team, on a biased, selective basis? That’s exactly how many employers feel about employees surreptitiously recording what happens in the workplace. Emerging technologies such as wearables, smartphones, and Google Glass make it easier than ever for employees to record workplace interactions without anyone else knowing. Captured conversations could include exchanges with supervisors, coworkers, or customers; disciplinary meetings; workplace investigation interviews; or even employment terminations.

Employers certainly can regulate employee workplace conduct. But employers that decide to ban employee recordings in the workplace should do so carefully, respecting employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”), whistleblower statutes, and nondiscrimination laws.

Why have a no-recording policy?

Employers understandably want control over the documentation of what occurs in the workplace. And employees may not realize that federal and state laws regulate their use of electronic recording equipment, and that several states require consent to recording from all parties to a conversation. Additional reasons to implement a no-recording policy include:

  • Respecting privacy expectations of employees, customers, and guests
  • Encouraging the free flow of information within the company
  • Protecting confidential information and trade secrets
  • Fostering frank discussions between employees, coworkers, and supervisors
  • Preventing disruption in the workplace resulting from recordings, which can be distracting and make the employees being recorded uncomfortable

What employee rights are implicated by a no-recording policy?

The NLRA

Employees have a right under NLRA Section 7 to engage in protected concerted activity. The National Labor Relations Board has broadly construed employees’ Section 7 rights, and a recording policy that inhibits an employee from furthering protected concerted activity will likely draw the NLRB’s attention.  Policies that place a total ban on recordings in the workplace, or that ban use or possession of recording devices, have already been found too overbroad when such policies can reasonably be read to prohibit making recordings on non-work time. And where a no-recording policy can reasonably be construed as unlawfully chilling an employee’s right to make recordings of protected activity, such as “strike efforts” or “unlawful activity,” the policy will likely not survive NLRB scrutiny.

Whistleblower Statutes

Federal whistleblower statutes can also be triggered by an employer’s no-recording policy. Administrative review board decisions have taken the approach that employees are engaged in protected activity when they record conversations or activities to gather evidence for what they believe constitute unlawful activities by the employer. Whistleblower protections can be found, for example,  in the Occupational Safety and Health Act, Sarbanes-Oxley, the Clean Air Act, and the Solid Waste Disposal Act.

Nondiscrimination Laws

Title VII prohibits an employer from retaliating against an employee based upon the employee opposing the employer’s discriminatory activity. Does an employee’s recording constitute activity in opposition of an employer’s discriminatory activity, thereby making the act of recording a protected activity? Several courts have addressed this issue:

  • Second Circuit: In Heller v. Champion International Corporation, 891 F.2d 432 (2nd Cir. 1989), the Second Circuit Court of Appeals it was invalid an employer to terminate an employee for disloyalty, based upon the employee surreptitiously recording of conversations with her supervisor. The Court reasoned that, though the recording represented disloyalty to the company, it was “not necessarily the kind of disloyalty that under these circumstances would warrant dismissal as a matter of law.” The employer did not have a no-recording policy in place to which it could point in justifying its decision.
  • Fourth Circuit: The Fourth Circuit Court of Appeals in Bodoy v. North Arundel Hospital affirmed the District Court’s ruling that an employee’s conduct in secretly tape-recording conversations with his supervisors was a valid, non-discriminatory reason for his discharge.
  • Sixth Circuit: In Jones v. St. Jude Medical S.C., the Court declined to find that the employee’s secret recording of conversations with other employees, management, or clients constituted protected activity under Title VII, and thus, the employer’s decision to terminate the employee for violating the no-recording policy was valid. The Court also noted that it did not see why the employee needed to violate the recording policy to oppose the employer’s alleged discriminatory treatment and stated other methods the employee could have pursued that complied with the employer’s policies.
  • Seventh Circuit: The Seventh Circuit held in Argyropoulos v. City of Alton that an employer’s admission that an employee’s surreptitious recording of conversations with her supervisors was a significant factor in deciding to terminate her employment did not establish direct evidence of retaliation in a Title VII sexual harassment and retaliation case. Even though the former employee allegedly made the recording to obtain evidence of discrimination, the Court refused to find the former employee had engaged in statutorily protected activity. In reaching that conclusion, the Court stated that Title VII did not “grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination.”

Crafting a no-recording policy to withstand NLRB and court scrutiny

These court decisions illustrate that a recording policy generally can provide a legitimate, non-discriminatory reason to discharge an employee, if the policy is focused appropriately to meet its stated purposes. Specifically, employers should consider the following:

  • State the purposes of the no-recording policy: Employers should state in their no-recording policy the reasons for not allowing workplace recording, and should also include a disclaimer that the policy is not intended in any way to inhibit employees from engaging in protected concerted activity. Employers should also review their handbook and other policies to ensure the message is consistent throughout on why recording is not allowed. For example, if the stated reason for banning workplace recordings is to protect trade secrets and confidential business information, then other provisions in the handbook and policies should include an embedded message that the company has a strong commitment to protecting such interests. If the stated purpose does not align with the company’s actual practices, a court may strike it down. The administrative court in Boeing Company held that the company’s policy, which prohibited employees from taking pictures of the plant without prior permission from the employer, was pre-textual because the company allowed the general public to take photographs while touring the plant. Employers need to be consistent in policy and practice.
  • Narrowly tailor the policy: If practicable, the employer should limit where and when employees are prohibited from recording, while leaving other areas or times open to recording.
  • Consider interests unique to your industry: Are you in the healthcare industry and have a legal obligation to safeguard protected health information? Then say so and include this as a reason for banning workplace recording. The NLRB has already shown leniency regarding recording policies in the healthcare industry to respect patients’ medical privacy interests. So, if your industry has specific regulatory requirements for privacy, address those concerns in your policy so as to articulate a legitimate business interest for having a no-recording policy in place.