Excerpted from a Phelps Dunbar LLP blog by Jason A. Pill
Almost everyone these days has a mobile recording device in their pocket. Employees can record employers, employers can record employees, and employers can record their customers at the touch of a button.
But legal and business risks can arise when people don’t know they are being recorded in a workplace, which could lead to potential violations of wiretapping laws, along with privacy laws.
Though wiretapping laws traditionally apply to audio recordings, some have been expanded to also include video recordings, which we see more of today. Additionally, many recordings, whether audio or visual, can lead to invasion of privacy claims separate from wiretapping claims. Below are a few things employers should know about workplace recordings.
All-Party vs. One-Party Consent State Statutes
Eleven states ban recording conversations without consent of all parties. This means employers or employees could violate state laws if they secretly record discussions with co-workers, their boss or anyone else. Other states only require single-party consent. In this case, the single party would be the recorder.
Employers need to be aware of the laws that apply in each state where they operate to avoid litigation. For example, a recent settlement was approved for $28 million in Illinois federal court, in which customers claimed that a national lender was recording their calls without consent.
Expectations of Privacy
To claim that a communication was recorded without permission, someone must have a “subjective expectation” of privacy that’s backed by societal norms. As a result, workplace privacy claims are highly fact-specific and hard to predict, whether they are brought as violations of wiretapping laws or invasion of privacy.
Recent rulings can provide insight on the scenarios that may or may not afford an expectation of privacy that is objectively reasonable—both in and out of the workplace. Courts have found that individuals had a reasonable expectation of privacy when:
- • Speaking in a hushed manner, behind closed doors on a subject matter outside the scope of business;
• Conversations were of a highly personal nature and ended abruptly when a car pulled into the driveway or a nearby telephone was used;
• Comments were made on the recording about closing the door for privacy.
On the other hand, courts have found that there was not a reasonable expectation of privacy when:
- • The conversation was held in an area open to staff with a recorder visible and near a desk;
• A secretly recorded shareholder meeting was conducted via telephonic conference call with outside members involved;
• A conversation was held in an individual’s place of business, unless there were unique circumstances that demonstrated privacy.
Workplace Recording Bans
Organizations can also limit an employee’s ability to record in the workplace through an internal policy. This can protect the company from employees capturing trade secrets or violating customer privacy regulations like HIPAA.
However, it’s important to understand these policies are not absolute. A policy’s strength may change depending on the current administration. Under the Obama administration, the National Labor Relations Board (NLRB) held that restricting employee recordings at work violated employees’ rights. However, under the Trump administration, the Board reversed the ruling, stating bans on workplace recordings were generally lawful. The Biden administration has already rolled back certain labor policies from the prior administration, and workplace recordings may soon follow suit.
To place a ban on workplace recordings, an employer must identify and articulate a legitimate business reason for the move, such as protecting trade secrets or confidential information. Otherwise, it can look like an employer is trying to stifle its employees and their federally protected rights.
If you plan to put workplace recording programs in place, it is essential to give notice to your employees in advance. You should make clear what the expectation of privacy in the workplace is, and ask for consent in writing. You should also consider the relevant laws in your jurisdiction and accompanying risks.
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