Workers Recording Workers

While 13 states prohibit employees from recording co-workers in the workplace without their consent, it is legal in the remaining 37 states. A judge's decision in a recent case involving Whole Foods may only add to the employer confusion around the topic.

Tuesday, November 26, 2013
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Do your office walls have ears?

With smart phones and other mobile devices, some employees are secretly recording workplace conversations despite company policies that prohibit recordings without management approval.

Whole Foods, a supermarket chain headquartered in Austin, Texas, recently defended its policy banning workplace recordings before the Washington-based National Labor Relations Board.

The service workers union challenged the policy, stating it was an unfair labor practice, explains Philip L. Gordon, a shareholder at Littler Mendelson, in Denver, who also chairs the law firm's privacy and data protection group. 

The union argued the policy interfered with employees' rights to engage in protected, concerted activities. Whole Foods' defense was that the policy eliminates a "chilling effect" that internal recordings would have on employees' right to express their views. The NLRB's former general counsel sided with the union, stating that such policies violate the National Labor Relations Act. However, an NLRB administrative law judge later rejected that decision.

Although the ALJ's decision isn't binding, Whole Foods won this round. So can employees snoop on each other at work or not?

Maybe. The matter is far from settled.

Gordon points to 13 states -- California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington -- that prohibit employees from recording coworkers in the workplace without their consent because of anti-wiretap laws. But secret recordings are legal in the remaining 37 states. To add even more confusion, he says federal law allows recordings if the person who is recording participates in the recorded conversation.

"But right now," he says, "the only court to address the issue of a general policy has said the general policy is fine," adding that businesses located in those 13 states can justify their policy by citing state law. "The question will be a bit tougher if the NLRB or a U.S. Court of Appeals held that employees have a right to record under the NLRA in certain circumstances. That would trump the state laws... ."

One reason why Whole Foods' policy survived this NLRB review is because the policy was not created to prevent concerted activity, says Gordon.

If HR plans to create such a policy, Gordon offers several tips, which are also mentioned on the law firm's blog:

  • Identify one or more legitimate business justifications. Why is your organization putting this policy in place? What is your business concern?
  • Apply the policy to everyone, not just to line or hourly workers. It makes your position more credible and ensures the policy won't interfere with employees' labor rights.
  • Apply the policy to just your business premise. The further the policy extends geographically, like to offsite meetings, the more likely it will be challenged. Otherwise, "... make sure that the legitimate business justification applies with equal force," he says.

Meanwhile, he says there's no sure bet about whether such policies will survive.

"I think the ALJ's decision makes a lot of sense," Gordon says. "There's a difference in telling people they can't talk to each other about the terms and conditions of their employment and telling them they can't record each other. I'm hopeful that the NLRB will affirm it or a U.S. Court of Appeals will affirm it."

Andrew Rempfer believes HR policies involving employee privacy laws are the next "cutting edge" in employment law.

As a partner at Cogburn Law Offices in Henderson, Nev., Rempfer has represented clients on both sides of the issue. He's currently litigating a case where an employee tape-recorded his supervisor's comments while firing him because he complained of labor issues. In another case, employees hid a recorder in one spot, which captured their coworker making scandalous allegations about her boss. In Nevada, he says that's wire-tapping. However, an employee can legally record conversations if the recorder is physically on their body; tucked in his or her shirt pocket, for example.

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He believes it's impractical for HR to create one policy that covers employees across state borders. "The employee handbook would be so large that it becomes unmanageable," he says, explaining that privacy laws can be very different, even between neighboring states such as Nevada and California.

Instead, Rempfer says HR executives need to review their employee policies every six months to ensure they're up-to-date on constantly changing employment laws. He also suggests adding a statement such as, "We consider employee privacy to be a very serious issue and comply with all federal, state and local laws."

"This is going to be a burgeoning issue," Rempfer says, adding that it's still unclear how such state laws interact with federal laws or rulings. "I cannot tell you how many times I hear employees state, 'Well, I had my recorder on or video recorder on ... .' That's probably why this decision will get a lot of plaintiffs' concern and make a lot of defendants happy."

Not every company needs a recording policy, so HR should avoid over-reacting to this case by creating one, says Joseph Godwin, a consultant at F&H Solutions Group, a labor and employment-consulting firm in Washington.

"Very few things should be jumped at automatically," he says. "My first rule for a policy is don't have a policy unless you need it, and if you need it, state a clear reason for it and support it with job-related facts."

Another consideration: Even if an activity is legal in your state, companies can still develop a policy prohibiting it, he says. Smoking is a good example. While legal in many places, companies can support an anti-smoking policy.

HR needs to ensure that every policy fits the workplace and workforce, says Godwin, explaining that companies, especially those employing a young workforce, need to assess the level of risk. If significant, consider creating a broader policy that covers the use of all personal electronic devices while at work.

"What all employers can get out of this is that there is no employee right to make recordings in the workplace," says Godwin. "If you have a workforce likely to make recordings and jokes and [do] things that would do harm to your business, then you need to have a policy about it. It's something for employers to consider, not have a knee-jerk reaction to."

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