Excerpted from a Venable LLP Blog by Allison Gotfried and Keith Olsen
From virtual meetings to security cameras and smartphones, or even AI glasses and recordings, employees are finding new and novel ways to capture workplace discussions and settings more easily. While recording technology can serve legitimate business purposes, it also raises significant legal and practical risks for employers, particularly as federal and state consent laws, privacy expectations, confidentiality, and employee-relations concerns continue to evolve.
This article highlights key legal considerations surrounding workplace recording, including when recording may be permitted, where employers most often run into trouble, and steps employers can take to reduce risk while maintaining compliance.
Understanding One-Party and All-Party Consent Laws
Whether and when workplace conversations may be recorded is often informed by state recording and consent laws, which establish different requirements, depending on the jurisdiction in which the recording occurs. State recording laws generally fall into one of two categories: “one-party” consent (the majority rule) or “two-party,” sometimes referred to as “all-party,” consent regimes.
- In one-party consent jurisdictions—such as Colorado, New York, and New Jersey—a conversation may be recorded so long as at least one participant consents to the recording.
- By contrast, two-party or all-party consent states, including California and Florida, require the consent of all parties to the conversation before recording.
For multi-state employers, this patchwork presents a compliance challenge. Conduct that is lawful in one state may expose an employer or employee to civil liability or even criminal penalties in another.
When Recording Is Protected—and When Employers May Restrict It
The National Labor Relations Act (NLRA) protects employees’ rights under Section 7 to engage in concerted activity concerning the terms and conditions of their employment, but it does not confer a blanket right to record in the workplace. The National Labor Relations Board (NLRB) evaluates employer recording restrictions on a case-by-case basis, balancing employees’ Section 7 rights against an employer’s legitimate business interests, including privacy, confidentiality, safety, and compliance with state law.
The NLRB has found covert recordings to be protected where employees act in concert for their mutual aid or protection. For example, recording may be protected when undertaken to document allegedly unlawful conduct like harassment, discrimination, or retaliation; to publicize workplace conditions; to clarify or memorialize inconsistent or disputed directives; to protect against false accusations or mischaracterization; to support internal complaints or investigations; or to ensure accuracy in high-stakes conversations concerning termination, discipline, or accommodation requests.
At the same time, a recent memorandum from the NLRB General Counsel, which signals enforcement priorities of the agency, addresses secret recordings. It identified factors that could strip an employee’s actions of Section 7 protections in the workplace. Those include violation of state law or explicit employer policies prohibiting unauthorized recordings; conduct deemed “egregious” or grossly inappropriate; and recordings that target coworkers (as opposed to supervisors or managers), which infringe on the privacy and rights of other employees.
Where Law and Policy Intersect: Crafting Compliant Workplace Recording Rules
Even where the law permits employees to make recordings, that legal permissibility does not limit an employer’s ability to regulate conduct in the workplace through internal policies. Employers may adopt policies that regulate audio or video recordings to protect confidential information, safeguard employee and client privacy, and prevent recordings from being taken out of context or misused. When carefully drafted and consistently enforced, such policies can coexist with applicable recording consent laws and serve legitimate business interests, provided they do not unlawfully interfere with employees’ protected rights under federal or state law.
Best Practices
- Become familiar with applicable state laws and their nuances. Employers must know whether they are operating in one- or two-party states, or both. They also must become aware of the nuances of this area of the law. For example, communications in states between the two regimes trigger different recording obligations.
- Train the workforce. Employers can hold training to inform employees about their rights as well as workplace policies regarding recordings.
- Establish and communicate recording policies. Employers should adopt clear, narrowly tailored handbook policies addressing audio and/or video recording in the workplace, including in remote or virtual settings. These policies should expressly articulate the business rationale for any restrictions.
- Consider notice practices. In some environments, advance notice that meetings may be recorded—without mandating consent—can reduce surprise and disputes while remaining lawful.
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