The Laws Surrounding Audio Recording
Generally speaking, the legality of recording conversations in the workplace is governed by federal and state wiretapping laws which can be broken down into two categories: one-party consent jurisdictions and two-party consent jurisdictions. As the name implies, whether you need one- or two-party consent depends on the jurisdiction you are in and the circumstances surrounding the recording. Unfortunately, while there is an attempt by some jurisdictions to make uniformity among the states as to whether one or two-party consent is required, there continues to be discrepancies in each state as to this requirement. Additionally, not only does the consent requirement change depending on the jurisdiction, but laws also vary regarding the types of conversations that are permissible to record depending upon their content. The National Conference of State Legislatures also has the most up-to-date breakdown of every state’s requirement for one- or two-party consent.
One-party consent jurisdictions are the majority of states in the U.S. which has a very broad definition of consent. This means that only one party to the conversation must consent before recording the conversation. Put another way, if you have permission to record from just one party to the conversation, you are legally permitted to record all parties. Further, in general, any recording is permitted so long as you are a participant in the actual conversation.
Conversely, two-party jurisdictions are in the minority, but still comprise about 15 states. Again, as the name implies, consent of both parties to be recorded is required. However, as further proof of the discrepancy in the law amongst the states, although being a two-party consent jurisdiction, Maryland has a very narrow exception to the two-party consent rule if you are a party to the conversation and the eavesdropping only occurs for the purpose of "overhearing or recording the conversation." See Md. Crim. Law Annot. § 10-402.
While these rules apply as a general matter , it is also important to note that there are further nuances to the law. One nuance is whether your action itself is considered "eavesdropping." For example, what if I’m in on the conversation and I set my phone down on the table recording the conversation for my own personal use, but later on decide to use the recording for litigation or other dealings with the previous speaker? Would this be considered "eavesdropping?"
Another nuance which varies from jurisdiction to jurisdiction is whether a recording is even permissible if it is done for criminal or tortious purposes, i.e., harassment, bullying, stalking, etc. Per the California Supreme Court in Flanagan v. Flanagan (2002), the act of secretly recording is not protected under the state’s privacy right if "surreptitiously done for the purpose of harassment or annoyance;" thus, permitting the aggrieved individual to recover damages. Thus, the answer to the above questions will vary depending on the state law.
To complicate matters further, in California for example, California’s Invasion of Privacy Act (CIPA) allows for civil recovery against anyone who "willingly discloses the contents of a communication (application of the eavesdropping law)." Generally speaking, the same rules as identified above apply to a civil claim, however, twice in the last seven years a California court has broadly interpreted each phrase of CIPA so that now a claim lies against anyone who "intentionally discloses" or "causes disclosure" of a "recording" of a "communication" ("regardless of the nature of the communication recorded"). Currently, other states have not made this finding.
Thus, in addition to the general laws discussed above, employers should be aware of jurisdiction-specific law, case precedents, and statutes that could make issues regarding audio-recording and eavesdropping more complicated than they first appear.
Consent Laws (Both Federal and State)
At the federal level, there is no explicit law banning employers from surreptitiously recording conversations with employees. Conversely, there is not a law expressly authorizing such conduct either. Rather, the Federal Wiretap Act simply sets out minimum standards but allows individual states to enact more stringent laws. As a result, many states have strict two-party consent laws that may prohibit audio recording without the consent of all the parties involved.
Twenty-three states follow this stricter approach: California, Connecticut, Delaware, Florida, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, Montana, Nevada, New Jersey, New York, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, Washington, Wisconsin, and Wyoming.
Employee versus Employer Rights
Determining whether and how to record employees is a balancing act for employers. Employers have a legitimate interest in recording employee interactions — whether to create a secure record with customers, track productivity, or review employee performance. However, employees have a legitimate expectation of privacy in their workplace interactions. Accordingly, employers should not assume that the choice to record is theirs alone.
The answer to whether an employer may lawfully record an employee therefore is two-fold: first — whether the employer has a right to record its employee, and second — even if so, whether the employer has a right to record its employee in the particular situation at issue.
First, many types of employers, such as public employers or those subject to certain bargaining obligations, may not have the right to unilaterally implement a recording policy. Even those employers that do have a right, may be required to observe more formal legal processes such as filing a petition for a secret ballot election to permit installation of such equipment.
While the answer to whether an employer may lawfully record its employees is found in labor law, the second question of whether an employer may do so in any given situation new consideration is required for developing lawful policies for recording employees.
For example, suppose (i) your policy allows for audio recording, and (ii) an employee complains that you took disciplinary action in response to a protected activity, such as a complaint of workplace harassment, and (iii) regardless of your policy against such harassment, you decide to collect evidence from witnesses to the alleged harassment.
If you decide to record the witnesses, either by audio or video, you may need to think about whether one or both of these recordings would be appropriate documentation for the situation. If your employer has a policy against recording in the workplace and the recordings are made on a whim without advance notice to your employees, this alleged violation of your own policy could negate any possible defense that those recordings are lawful.
Consequences of Illegally Recording or Taping Employees
Employees should always be aware of their employer’s right to record conversations with them. However, they should understand the potential consequences their employer could face if they record them unlawfully and without the required consent to do so.
First, if an employer records a conversation with an employee, then the employee may file a lawsuit as a result of the recording. A lawsuit for damages may be filed under the Privacy Act against the employer for violating their privacy.
Second, employers who illegally record their employees may also face fines from the National Labor Relations Board.
Third, employers may also face criminal consequences as well as penalties from the Federal Communications Commission (FTC) if they violate applicable federal laws.
Best Practices for Employers Considering Recording Employees
If an employer decides to implement an audio recording policy, it is essential to do so in a way that complies with recording laws and does not lead to employee distrust. To that end, some guidelines can help employers navigate the legal requirements as well as employees’ right to privacy in the workplace. Transparency. Above all, maintaining transparency with employees is essential. Audio recording should not be a secretive or pointed tactic. Instead, employers should make their intentions clear, such as for disciplinary purposes or to catch a specific employee engaging in time clock abuses or speaking ill of customers or co-workers. Obtaining Consent. Employers should consult with an attorney to draft and distribute a consent form. Even in "one party consent" states , it is always best practice to obtain written consent from employees who may be recorded. Recording Policies. The recording policy should clearly detail how employees may be recorded, what may be recorded, and with who the recording may be shared. If recordings are being made to monitor employees’ use of technology, then employees should be told how technology is monitored, how often recordings are made, what happens to the recordings, who has access to the recordings, and how long recordings are kept. If recording is done for disciplinary purposes, employees should be informed when and how recordings will be used in an investigation or disciplinary action, along with how long recordings are kept. Privacy is crucial to maintaining trust and, especially with private employee information, employers should make every effort to avoid unnecessary breaches of confidentiality.
Case Examples
A notable case in the realm of audio recording in the workplace is National Labor Relations Board v. Weingarten, Inc., 420 U.S. 251 (1975), an early Supreme Court case addressing employees’ rights to representation. In this case, an employee with the right to union representation was questioned by her employer about a suspected theft. The employee, fearing disciplinary action, requested the presence of a union representative during the questioning. The employer denied the request and proceeded with the questioning. The employee subsequently filed an unfair labor practice charge, and the case eventually made its way to the Supreme Court.
The Supreme Court ruled in favor of the employee, holding that under Section 7 of the NLRA, an employee has the right to have a union representative present during investigatory interviews that the employee reasonably believes may result in disciplinary action. In this case, the employer’s denial of the request for union representation constituted an unfair labor practice. This case illustrated how federal protections make it illegal to deny employees the ability to record or to have union representation during employee interviews.
Another relevant case is T-Mobile USA, Inc., 369 NLRB No. 85, in which the administrative law judge held that an employer prohibited employees from using their personal cell phones to record workplace interactions without specific permission from management. However, the ALJ also noted that the employer had made numerous exceptions to the policy and that the employer did not consistently enforce the rule. The employer eventually settled after the ALJ issued the ruling, agreeing to rescind the rule and notify employees of their rights regarding audio recording.
These cases illustrate the nuanced application of federal, state and local laws to audio recording in the workplace. Employees should be aware of their rights before audio recording any aspects of their employment. Employers, on the other hand, must be careful in how they craft policies in order to ensure compliance with all applicable laws.
Technology and Recording
The impact of technology on recording practices is both obvious and subtle. Equipment for surveillance and audio/video taping have become infinitely more accessible and convenient than before. While some employers may be using hidden microphones, others are merely using modern technology to make audio recording more accessible. The hidden cameras outside the facility, the hidden microphones in the break rooms, or in the individual desks of employees are already present. Moreover, some employers record employee calls made on company phones, and others monitor and record the websites and social media the employees visit during the work hours. These uses infringe upon employee privacy. However , none of them are illegal in most of the states in the United States. Many consider them invasive, but not many of them have been found illegal. Most of the states in the United States employ a one party consent rule, and because of that, employee recording issues come down to what the office policy states to employees when they are hired. If the workers are given notice of that at the time of hiring, the employer may have the ability to control what the employees say and do on the property of the employer, and have the recordings readily available when needed. It is unlikely that the result will change simply because technology has made it easier to keep track.