The recent revelation that Omarosa Manigault Newman secretly recorded her conversations with President Donald Trump and Chief of Staff John Kelly in purportedly the most secure workplace in the country once again highlights employers’ vulnerability to surreptitious recording by their own employees.

Indeed, recent history is replete with examples of public and private employers suffering the consequences of such recordings, with the ubiquity of smartphones and other common electronic devices with recording capacity heightening these hazards. While employers can take steps to prevent employees from using these devices, both state and federal law speak to the legality of such steps.

Employers should be aware that the legality of recording conversations is governed primarily by state law. Some states permit the clandestine recording of conversations where at least one party to the conversation is aware of the recording (single-party consent). Other states require every party to the conversation to give permission to be recorded (all-party consent). Still other jurisdictions utilize variations of these two approaches. Thus, the legality of workplace record often depends on where the recording occurs.

In the Washington, D.C., metro area, for example, Virginia is a single-party consent state, Maryland is an all-party consent state, and in the District of Columbia, a person may record a conversation if at least one party is aware of the recording, but the act becomes illegal if the recording is subsequently used to commit a crime or tortious act. To learn where each state stands on the issue, consult this high-level summary prepared by the Reporters Committee for Freedom of the Press, discussing eavesdropping laws in all 50 states.

Employers’ attempts to ban workplace recording once ran afoul of federal labor law. In a 2015 decision, Whole Foods Market, Inc., the National Labor Relations Board (NLRB) ruled that an employer rule banning all audio and video recording in the workplace without supervisor consent violated the National Labor Relations Act (NLRA). The NLRB found that “[p]hotography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” The NLRB specified that “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions” would all be protected.

Fortunately for employers, the NLRB reassessed this position in a late 2017 decision, The Boeing Company. (For details, see McGuireWoods’ December 2017 alert “NLRB Overturns Three Obama-Era Decisions on Labor-Management Relations.”) In Boeing, the NLRB established a new test for evaluating whether the maintenance of facially neutral policies violates the NLRA. The NLRB now weighs the nature and extent of the potential impact on NLRA-protected rights against the legitimate justifications associated with the policy. In applying this new test to the employer’s no-photography rule, the NLRB in Boeing determined that the employer’s maintenance of such a rule was lawful because the rule had legitimate justifications and little impact on NLRA-protected rights.

Subsequent to the Boeing decision, the NLRB general counsel issued Memorandum 18-4, which, among other things, applied the new Boeing test to employer rules prohibiting recording in the workplace. The general counsel takes the position that simply maintaining a no-recording rule, like the no-photography rule at issue in Boeing, is lawful because the rule has “little impact on NLRA-protected rights” and may even promote Section 7 activity by encouraging open discussion and exchange of ideas.

However, as recognized by the general counsel, the NLRB in Boeing specifically noted that the decision applies only to the maintenance of facially neutral rules. Rules that specifically ban protected concerted activity, or that are promulgated directly in response to organizing or other protected concerted activity, remain unlawful. Moreover, the NLRB held that the application of a facially neutral rule against employees engaged in protected concerted activity is still unlawful.

To assess and respond to the risk of employees recording workplace conversations, employers should understand the law governing recordings in their individual states. If the state has adopted an all-party consent law, employers should feel relatively comfortable that employees cannot record their conversations without subjecting themselves to serious penalties. Nevertheless, these employers (and all employers operating in multiple jurisdictions and one-party consent states) should consider instituting policies regulating the practice of recording in the workplace. These policies should clearly prohibit this activity and notify employees that violating the policy could result in discipline, up to and including termination. Such a policy should help dissuade employees from recording managers or coworkers without their consent and gives employers recourse to discipline employees who violate the policy.

While no policy can prevent disgruntled former employees from using or publicizing recordings they have already made, instituting a no-recording policy may help dissuade employees from creating those recordings in the first place.