Almost everyone these days has a mobile recording device in their pocket. Employees can record employers, employers can record employees, and employers can record their customers at the touch of a button. But legal and business risks can arise when people don’t know they are being recorded in a workplace, which could lead to potential violations of state and federal wiretapping laws, along with state-specific privacy laws.

Though wiretapping laws traditionally apply to audio recordings, some have been expanded to also include video recordings, which we see more of today. Additionally, many recordings, whether audio or visual, implicate privacy rights and can lead to invasion of privacy claims separate from any wiretapping claims. Below are a few things employers should know about workplace recordings.

All-Party vs. One-Party Consent State Statutes

Eleven states ban recording conversations without consent of all parties in the conversation. This means employers or employees could violate state laws if they secretly record discussions with co-workers, their boss or anyone else. Other states only require single-party consent. In this case, the single party would be the recorder.

Employers need to be aware of the laws that apply in each state where they operate to avoid exposure to litigation. For example, a recent settlement was approved for $28 million in Illinois federal court, in which customers claimed that a national lender was recording their calls without consent.

Expectations of Privacy

To claim that a communication was “intercepted” (or recorded) without permission, someone must have a “subjective expectation” of privacy that’s backed by societal norms. As a result, workplace privacy claims are highly fact-specific and hard to predict, whether they are brought as violations of wiretapping laws or invasion of privacy claims.

Recent rulings can provide insight on the types of scenarios that may or may not afford an individual an expectation of privacy that is objectively reasonable—both in and out of the workplace. Courts have found that individuals had a reasonable expectation of privacy when:

    • Speaking in a hushed manner, behind closed doors on a subject matter outside the scope of the business
    • Conversations were of a highly personal nature and ended abruptly when a car pulled into the driveway or a nearby telephone was being used
    • Comments were made on the recording about closing the door for privacy

On the other hand, courts have found that there was not a reasonable expectation of privacy when:

    • The conversation was held in an area open to office staff with a recorder visible and near a reception desk
    • A secretly recorded shareholder meeting was conducted via telephonic conference call with many outside members involved
    • A conversation was generally held in an individual’s place of business, unless there were unique circumstances that demonstrated secrecy or privacy

Workplace Recording Bans

Organizations can also limit an employee’s ability to record in the workplace through an internal policy. This can protect the company from employees capturing trade secrets or violating customer privacy or regulations like HIPAA.

However, it’s important to understand that these policies are not absolute. A policy’s strength (and defensibility) may change depending on the current administration. Under the Obama administration, the National Labor Relations Board held that restricting employee recordings at work violated employees’ rights. However, under the Trump administration, the Board reversed the ruling, stating that bans on workplace recordings were generally lawful. The Biden administration has already rolled back certain labor policies from the prior administration, and workplace recordings may soon follow suit.

To place a ban on workplace recordings, an employer must identify and articulate a substantial and legitimate business reason for the move, such as protecting trade secrets or confidential information. Otherwise, it can look like an employer is trying to stifle its employees and their federally protected rights under the NLRA.

Employee Consent

If you do plan to put workplace recording programs in place, it is essential to give notice to your employees in advance. You should make it clear what the expectation of privacy in the workplace is, and ask for employees’ consent in writing. You should also consider the relevant laws in your jurisdiction and accompanying risks.