Authors: Valerie K. Ferrier

Increasingly, stories are appearing in the news about employees who have secretly recorded their colleagues and supervisors at work. It may come as a surprise that such recordings may be completely legal. The ease with which secret recordings can be made presents multiple considerations for employers: this article provides an overview of the law and points for employers to consider on secret recording in a work context.

Overview

Gone are the days of bulky recording devices and wires. Anyone with a cell phone can easily start a recording, slip the phone in a pocket, and walk into a meeting. Recently, an employee at the Federal Housing Agency recorded her supervisor discussing his attraction to her and suggesting that he could fast track a promotion for her. The employee brought claims for harassment, retaliation and equal pay to the Equal Employment Opportunity Commission (EEOC) and confirmed in a subsequent interview that she has continued to make recordings at work.

Is this legal?

Quite possibly. Most jurisdictions, including New York, the District of Columbia, Colorado, Texas, and Virginia, are so-called ‘one-party consent’ states, meaning that the only person who needs to consent to the recording is the person making it, provided he or she is a participant in the conversation. Eleven other states, including California, Maryland, Connecticut, and Massachusetts, require the consent of everyone on the recording.

Am I being recorded?

Maybe. Employees who suspect that they are about to be disciplined or terminated may begin to attempt to create a record by recording interactions with co-workers and supervisors. Employers should be aware that once a disciplinary process is initiated, the employee may be recording everything from that point forward. Pervasive secret recordings affect workplace culture and may affect employee morale, causing lack of trust and anxiety about interactions with colleagues. Therefore, employers may wish to implement policies prohibiting recording in the workplace.

Employers may be more confident in implementing such policies after the National Labor Relations Board’s recent shift in position. As most employers are aware, for the past several years the Board has challenged such policies (in both unionised and non-union workplaces) as being unlawful under the National Labor Relations Act (‘the Act’) because they have the potential to inhibit employees’ exercise of their rights under Section 7 of the Act. Recently, however, the Board revised its position on such policies, setting out a new standard in The Boeing Company, (Dec. 14, 2017). The Board’s General Counsel subsequently issued a Guidance Memorandum explaining how the Regions are to treat handbook rules following the decision in Boeing. According to the Memorandum, rules prohibiting employees from recording workplace conversations and/or telephone conversations with co-workers or managers without prior authorisation generally will be considered facially lawful (that is, apparently lawful on initial examination). However, merely because a rule is considered facially lawful does not mean an employer may lawfully use the rule to prohibit protected concerted activity or to discipline employees engaged in protected concerted activity. The Memorandum also notes that a ban on mere possession of cell phones at work may be unlawful where the employees’ main method of communication during the work day is by cell phone.

Can I record my employees?

Employees have no expectation of privacy related to their verbal conversations at work. In a one-party consent state, an employer may actually find a level of protection by recording disciplinary interactions with employees or employee terminations. Of course, such recordings require the consent of both parties in a two-party consent state.

When making any recording, it is important to preserve the chain of custody. One way to do that is by immediately emailing the recording to a work account, which will provide a time and date stamp, should the recording be used in a future litigation. However, some courts have held that, depending on the circumstances, ‘secretive surveillance’ may constitute adverse employment action (that is, an action negatively impacting a person’s employment, which may become the basis for legal action) for the purposes of an employee’s retaliation claim. See, for example, Williams v. Guilford Technical Community College Board of Trustees, 117 F. Supp. 3d 708 (M.D.N.C. 2015). To avoid such a claim, an employer could simply inform the employee that the conversation is being recorded for both of their protection, and offer to provide the employee with a copy of the recording. Note that an employer in a unionised workplace may be required to bargain over the implementation of recording equipment and, even if not, likely should provide notice to the union of the intent to implement such a system.

Employers' Bottom Line

Technological advances have made the possibility of secret recordings in the workplace a new reality. Employers should consider whether to implement anti-recording policies, or whether to record disciplinary interactions with employees.