Are you being recorded?
An employee secretly uses his cell phone to record your conversation and then uses that recording to submit an employment claim against you. Another employee secretly records a meeting with multiple participants and then posts the audio file on her personal Facebook page as proof of her opinion that meetings are a waste of time. As an employer, what can you do?
The National Labor Relations Board and OSHA support secret recording at work based on the argument that employees are reporting/exposing workplace conditions. State laws vary with some allowing secret recording. In other words, only one person has to know its happening, and that’s the person with the cell phone in his pocket. There are also wiretapping laws that say a person can generally record the conversation if he or she is a part of the conversation.
What can you do?
While an employee may have the right to secretly record you, you also have the right not to be recorded. You can diplomatically ask the employee to confirm that the conversation is not being recorded. If you don’t get the confirmation, you can end the conversation or meeting. If it’s during an investigation and the employee shares concerns that refusing to have the conversation will limit the depth of the investigation, let him know that you will be glad to have the conversation when it’s not being recorded. If that’s not an option, then the investigation will be completed without that employee’s statements.
Most courts hold that employers can lawfully terminate an employee for secret recordings that violate the employer’s policy, even if recorded for the purpose of gathering evidence. If you have an overly broad policy that prohibits all recording at work for any reason at any time, the policy will not stand up to NLRB scrutiny. The policy needs to be up to date, and managers should be trained on this issue.
Ogletree Deakins employment attorneys, Deepa Subramanian and Greg Hare, suggest a handbook policy like the one below:
To maintain the confidentiality of the company’s trade secrets and proprietary information, and to protect the privacy and confidentiality of the company’s customers, vendors, and suppliers, the company does not permit recordings in the workplace, subject to the exceptions discussed below.
It is a violation of company policy to record (audio, video, or otherwise) conversations with a tape recorder or other recording device (including a cellular telephone or smart phone) when the person being recorded or the person doing the recording is on working time, is in working areas, or is conducting business on behalf of the company. Working time is defined as the time an employee is expected to be actually working, and does not include meal periods or other authorized breaks. Nothing in this policy is intended to or should be construed to restrain employees in the exercise of their rights protected by the National Labor Relations Act, including the right to engage in protected concerted activity.
Written by Scott Mastley, SPHR, MBA. Scott is the Chief Human Resources Officer for Resource Alliance. Scott is a consultant, not an attorney, so he shares his opinions, not legal advice, about increasing performance and limiting liability.
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