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Legal Clinic

Monday, November 4, 2013
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Question: We have just learned that some employees have been secretly tape recording conversations they have with management. Is there something we can do to prohibit this? We work in a state that is single consent for taping conversations but we are concerned about employees taping conversations with management at work. Also, if we create a policy prohibiting this, what should it generally look like?

 

Answer: Employee tape recording within the workplace has become increasingly widespread. This is largely due to the fact that we live in a litigious culture when it comes to allegations of discrimination in employment, and employees who take or consider taking legal action against their employers often utilize recording devices in an attempt to obtain evidence to strengthen their cases.

 

The Equal Employment Opportunity Commission has reported that approximately one-third of employees who make discrimination complaints in its Houston, Texas office bring some form of digital evidence, including audio recordings. See Heussner, Ki Mae, "Are You Being Secretly Recorded at Work?" ABC News, April 19, 2011, available at http://abcnews.go.com/Technology/secretly-recorded-work/story?id=13409126.

 

In an age where digital technology is consistently expanding, it is no surprise that employees are using all forms of media to record workplace conversations, especially with supervisors and managers. However, employers who wish to maintain an open and honest workplace environment often have legitimate business concerns regarding secret recordings by employees. Accordingly, to maintain best practices in the workplace, employers should be aware of federal and state privacy laws, which regulate monitoring of potentially confidential communications in the workplace.

 

Federal Privacy Act

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, amended by the Electronic Communications Privacy Act of 1986 ("ECPA"), and also known as the Federal Wiretapping Act, makes it unlawful for an individual to intentionally intercept or disclose any "wire, oral or electronic communication." 18 U.S.C. §§ 2510 et seq. The Act contains an exception and allows for electronic monitoring "[w]here such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. 18 U.S.C. § 2511(2)(c).   

 

State Privacy Laws

The majority of states have wiretapping statutes, and many states have modeled the statutes off of the federal law. Thirty-eight states and the District of Columbia are considered "one-party" consent states and permit individuals to record conversations so long as one party consents to the recording. Therefore, an employee who works in a "one-party" consent state may likely tape record a conversation with his or her supervisor -- as long as the employee is a present party to the conversation. Twelve states are considered "two-party" consent states, and require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Courts have found that the ECPA does not completely preempt state statutes, and does not preclude states from implementing more restrictive regulation of the interception of electronic communications. See, e.g., Shivley v. Carrier IQ, 2012 U.S. Dist. LEXIS 103237, at * 28 (N.D. Ca. July 24, 2012) ("Such a sweeping intrusion into the power of states to protect privacy rights cannot be implied absent the clearest of congressional intent. The ECPA provides no such basis.").

 

Proactive Steps Employers Can Take To Prohibit Secret Tape Recording in the Workplace

Employers, especially in "one-party" consent states, often have legitimate business concerns regarding an employee surreptitiously tape recording conversations in the workplace. For example, a secret audio/video recording may have a chilling effect on business operations as it may inhibit open communications within the workplace. It may also violate company confidentiality policies. To prohibit employees from recording conversations within the workplace, employers should consider adopting a "tape-recording" provision or policy within an employee handbook or manual or company-wide policy addressing communications. The employer should announce its policy concerning communications in advance of implementing the policy. In drafting a tape recording policy, employers should consider the following factors:

 

*     Determine whether the organization is located in a "one-party" consent or "all-party" consent state and analyze the state and local laws regulating such activity;

 

*     Articulate the purpose of the policy. For example, to indicate that the purpose of the policy is to promote open and honest communications and to prevent a chilling effect within the workplace that may result from surreptitious recordings;

 

*     Incorporate the examples of the types of prohibited recording, including video recording, audio recording and the use of electronic devices, including cell phones;

 

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Privacy Policy

*     Incorporate language which requires prior approval from a supervisor or upper management to tape record conversations or the consent of all parties to the conversation;

 

*     Select personnel who will aid with the enforcement of the policy;

 

*     Establish penalties and consequences for violation of the policy.

 

Sample Tape Recording Policy

Employers should work with counsel in drafting company-specific tape-recording policies. The following is a generalized sample tape-recording policy that may serve as guidance:

 

It is a violation of company policy to record conversations with a tape recorder or other recording device (including a cellular telephone,

 

Violation of this policy will result in disciplinary action, up to and including immediate termination.

 

Many companies have policies that prohibit the recording of conversation by employees. Even the National Labor Relations Board has recognized that an employer policy may serve as grounds for an employer to prevent an employee from secretly tape recording meetings with managers. See, e.g., Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (2011), affirmed 2012 U.S. App. LEXIS 7999 (D.C. Cir. April 20, 2012) (Board held that employees may secretly tape record meetings with their managers that they reasonably believe could result in discipline when (1) the employer has denied the employee the Weingarten right to union representation at the meeting; (2) the employer does not have a rule against taping; and (3) the taping does not violate state or local law.). Accordingly, employers should consider drafting such policies into their employee manuals or handbooks as a step to prevent employees from secretly recording conversations within the workplace, which may in turn promote a more open and honest workplace environment.

 

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

 

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