The issue of whether an employer should allow employees to record or video conversations is very important, and very controversial. There are many legal and practical considerations. Let’s take the legal issues first.
During the Obama Administration, the NLRB overruled prior precedent and ruled that employers could not ban all audio or video recordings in its workplace. The theory in the ruling was that employees during their nonworking time could exercise a protected concerted activity right when making such recordings. However, in December of 2017, the NLRB overturned that ruling and instead ruled that an employer could have a lawful work rule prohibiting such recordings in the workplace. The Boeing Company, 365 NLRB No. 154.
Various state laws come into play as well. Many states have privacy-related laws and policies about recordings, and some states even ban the secret recording of conversations. A more common state rule is to require at least one party to the conversation to consent to the recording, while a few states require all parties to consent to the recording. An example of the application of such state laws occurred involving the witness in the President Clinton investigation where the witness secretly recorded her conversations with Monica Lewinsky.
Now let’s move on to some practical considerations. A number of years ago the Equal Employment Opportunity Commission (EEOC) indicated that about one-third of complainants bringing discrimination charges brought digital evidence with them, including audio recordings, as a part of establishing their discrimination case. This writer has had experience in certain organizational campaigns when allegedly the union told employees to "bait your supervisors into making unlawful comments" which are later the subject of unfair labor practice proceedings.
Employers are also aware that certain activists desire to record or film certain happenings at the workplace, related to treatment of animals, safety, or various other issues. Employees often do not ask before recording such events. It is easy to secretly record in many circumstances, and there is particular danger of a widespread dissemination of the conversation and/or recordings, including going viral through social media.
When employees do ask about their right to record, sometimes it creates a very sensitive situation for the employer. Suppose an employee is asked to come to a disciplinary meeting and asks if he can record the conversation? In union organizational campaigns, suppose management observes some of the employees in a group meeting recording the presentation?
The risk of so many sensitive situations suggests that the employer should have a written policy in place addressing such recordings. The policy could be based on privacy and proprietary information, and could ban such recordings without express permission from management, and permission could be granted for valid work-related reasons. In the absence of a rule that is uniformly enforced, an employer may have difficulty enforcing such a concept in sensitive situations.
The next question is whether management itself should obey the rule, or whether the rule should be carefully drafted to be applicable only to non-management employees? For example, on occasions employers may desire to record conversations of meetings with employees. Further, most work sites now use various types of videos for security and other purposes.
As a general rule, employers should not record conversations or meetings with employees, for reasons unrelated to rule enforcement and privacy. If the recording is made secretly, it is sometimes viewed as "sneaky" by judges and juries. Further, the employer may be creating evidence that is just as likely to be used against it as for it. It is usually better to have witnesses present than to use recordings.
There is an old saying, "What’s in a name?" that should equally apply to the theme of this article, "What’s in a Rule?"
