Are Your Employees Audiotaping or Videotaping at Work?

By Lehr Middlebrooks Vreeland & Thompson, P.C.

November 17, 2017

Apparently, employees believe that it is a fundamental right to have a cell phone at work and to record freely conversations or videotape during working time. There is no inherent right to (1) have a cell phone at work and (2) audio and/or videotape conversations or activity at the workplace. Many employers quite lawfully tell employees to leave their cell phone in their locker or vehicle, because of employer concerns about texting and other distracting behavior. Eleven states prohibit the tape recording of conversations with another unless all those who are recorded consent to the conversation. Those states, referred to as “all party” consent states are California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. The remaining states are “one party” consent states, which means that it is not criminal eavesdropping if the person recording the conversation consents to the recording even though the persons recorded do not know the recording is occurring. (This assumes the person doing the recording is present during the recording).

Employers are rightly concerned about an employee during the course of an investigation or disciplinary discussion secretly recording the conversation or conversations with supervisors. An overly broad policy prohibiting recordings violates the National Labor Relations Act, according to the NLRB and upheld by the Second Circuit in the decision of Whole Foods Market Group, Inc. v. NLRB (2nd Cir. 2017). In that situation, the court upheld the standard that an anti-recording policy violates the NLRA if employees could construe the language to prohibit protected activity under the Act, the policy is in response to union activity, or the policy has been applied in a manner to restrict the employee’s exercise of rights under the NLRA. A carefully crafted policy prohibiting video or tape recording can be allowed. These are starting points for the employer to consider:

1. No employee may record a conversation with another employee, including conversations of an investigatory or disciplinary nature.

2. Employee videotaping of other employees or company property is strictly prohibited. Many companies have legitimate trade secret, customer information, or patient/health information concerns to support such policies.

3. An employee may not record a conversation with any other employee unless (a) the company approves the recording, (b) the employee recorded is asked in advance for permission and (c) those who are conducting the recording provide a copy to that employee