Dear Employer: I’m Recording You!
More and more, I have noticed employees are recording their employers. Smartphones, along with other technological advances, have made recording or videoing workplace conversations very easy. These recordings can be used in litigation and have the ability to become public-relations nightmares.
Because of this, employers frequently ask me whether they can implement broad policies prohibiting recording or videoing. The answer, of course, is: it depends. Sweeping policies banning workplace recording may be subject to various challenges. Here are some specific concerns to keep in mind.
Certain States Allow Recordings
As a threshold matter, it is important to note a majority of states allow recordings so long as one party consents to the recording. Conversely, 15 states require all parties to consent to a recording. While courts have not yet dealt with preemption strikes against these recording prohibition laws, there is a strong likelihood state laws disallowing recordings are preempted by federal laws for purposes of employment protection, such as engaging in protected activity.
Arizona is in the majority. However, it is important to note that while Arizona law allows for secret recordings, an Arizona resident is prohibited from recording a phone call from a state that requires all parties to consent. Doing so would be deemed illegal and could have criminal implications. Arizona also has laws prohibiting secret video recording in certain private places, like the bathroom.
Secret Recordings and Whistleblower Statutes
OSHA investigates violations of whistleblower provisions contained in a variety of statues aimed at protecting employees who report violations of specific concerns. This includes safety, financial reform, health insurance reform, and securities laws.
Administrative review boards tasked with making final decisions on OSHA-related matters regularly admit an employee recording made in good faith to gather evidence to support a whistleblower claim. In fact, the boards have found a broad range of employee conduct is allowed, such as taking photographs, making secret recordings, and performance of quality control and quality assurance functions.
Secret Recordings and Federal Nondiscrimination Laws
There is no bright-line rule regarding secret recordings and discrimination claims. On one hand, some courts have held recordings for proposes of gathering evidence to support a workplace discrimination claim is a protected activity and should not result in employee termination. Other courts have held the opposite so long as there is an employer policy in place prohibiting recordings. These issues should be handled delicately and reviewed on a case-by-case basis.
A carefully-drafted policy prohibiting secret recordings is an important first step in combatting this issue. Of course, the policy should keep in mind the conflicting views by various federal agencies, comply with any state law, and be tailored accordingly. The policy should also explicitly state it is not intended to chill employee rights under the NLRA.
Employers should also ensure their management and HR professionals are properly trained and understand the applicable laws so they don’t misspeak or create a legal issue. Additionally, it’s always a good idea to check in with an employment lawyer every six months to a year to determine whether there are any changes or updates to laws that impact the workplace.
My grandmother always said – assume you’re always being watched and you will always do the right thing. While this caused me some nightmares when I was younger, she is right. Supervisors, managers and HR professionals should always assume they are being recorded and strive to do the right thing, regardless of whether they are being watched.
About the Author: Alejandro Pérez is a partner at the Phoenix law firm of Jaburg Wilk. He assists clients with employment law issues including hiring, termination, employee discipline, paid sick time, leaves of absence, wage and hour compliance, and whistle-blower liability.