Remember Privacy?

1. Introduction

The ubiquity of smartphones and sensitive security cameras have made audio recording in the workplace more common. Some may be accidental, while other recordings may be intentional attempts document workplace conversations in secret. Both types of recordings can constitute felony violations of state criminal laws, unfair labor practices, and sources of civil liabilities. State laws on recording conversations — often addressed as criminal eavesdropping and wiretapping— vary significantly. Employers must understand this legal landscape when assessing a range of recording issues.

2. One-Party vs. Two-Party Consent States

State laws are divided into one-party and two-party (or “all-party”) consent.

• One-party consent states allow a person to record a conversation as long as one party to the conversation (typically the person recording) consents to the recording. Most states (e.g. NY and TX) follow this rule.
• Two-party (all-party) consent states require that all parties to a private conversation must give their consent for a recording. Failure to have all parties consent to a recording violates the laws. States like California, Florida, Pennsylvania, and Illinois are two party consent states.

Recording someone without the necessary consent in a two-party state can result in criminal penalties, including fines or imprisonment. In Illinois, eavesdropping is at least a Class 4 felony. Recording can further expose the recorder to civil liability. In two party consent states, employers generally do not use recording devices in the workplace, such as audio components of security cameras.

3. What Employers Should Do if an Employee Secretly Records Conversations in the Workplace

A. In a Two-Party Consent State:

If an employee secretly records conversations without consent from all participants:

1. Legal Exposure: The employee may be in violation of the state’s criminal eavesdropping or wiretapping laws, as well as Company policy prohibiting surreptitious recording.
2. Employer Options
   • Conduct an internal investigation.
   • Take appropriate disciplinary action if allowed by company policy.
   • Consider contacting legal counsel to evaluate civil or criminal action.
3. Limitations:
   • If the recording relates to protected concerted activity under the NLRA (discussed below), employers must tread carefully before taking disciplinary action.

B. In a One-Party Consent State:

If the recording employee is a participant in the conversation, the act is generally legal—even if the other party is unaware. Note that:

• Workplace policies can prohibit recording of meetings, surreptitious or open. Employers may discipline employees for violating internal rules about recording, especially where confidentiality is at issue.
• Again, if the conversation relates to protected activity under the NLRA, employers must approach discipline with caution.

4. NLRA Restrictions and Covert Recordings

The National Labor Relations Act (NLRA) protects employees’ rights to engage in concerted activities for mutual aid or protection, including discussing wages, working conditions, or unionizing efforts.

A. When Covert Recordings Are Protected:

Decisions from the National Labor Relations Board have protected employees who secretly record conversations when the employees are “acting in concert for their mutual aid and protection” , particularly when:

• The employee is gathering evidence of unlawful conduct, such as harassment, discrimination, or interference with labor rights;
• The recording is part of a broader effort to address or publicize workplace conditions; or
• The employee is recording conversations about terms and conditions of employment.
• The NLRB has upheld disciplinary actions where employees are not acting in concert for their mutual aid and protection or the employer has an “overriding interest” to restrict the recording, for example:
  • The recording violates clearly communicated and lawful company policies.
  • The recording invades significant privacy interests such as recording confidential company information or trade secrets or recording private personal information.

Notably, in an aggressive decision from the National Labor Relations Board during the Biden Administration, the Board determined that the National Labor Relations Act preempts state consent-to-record laws when employees are engaged in protected activity, meaning that an employee’s covert recording in a two-party consent state is protected when “acting in concert for their mutual aid and protection.”

Thus, while the NLRA provides some cover, it does not give a free license to record illegally or in violation of legitimate and lawful workplace rules, Employers must tread lightly with regard to employee discipline for secret recordings about protected activity, particularly with regard to occupational safety and health.

5. Interviewees’ Rights During an OSHA Inspection or Other Government Investigation.

During inspections or investigations by government agencies such as OSHA, EEOC, or the Department of Labor, employees have certain rights, including to refuse participation in interviews and have a representative of their choice present. Employees have the right to object to audio and video recording of their interviews. Their only obligation is to provide honest answers. When employees (or their representatives) object to recording, government investigators typically relent and instead take notes.

But do interviewees and employer representatives have the right to record interviews and interactions with government investigators?

• In one-party consent states, a person can typically record their conversation with an investigator without disclosing it.
• In two-party consent states, the investigator sometimes must consent to be recorded.
• Recording without consent in a two-party state could expose you to criminal liability—even if the conversation is with a government official.
• In some states such as Illinois, courts have created an exception to record police and some government investigators.
• We generally do not recommend that anyone record government interviews, and instead provide only honest answers to questions within the reasonable scope of the inspection.
• Management may take notes on what their interview or comments by an investigator. Management notes over a more predictable and controlled format to document a conversation.

6. Best Practices for Employers

1. In two-party consent states, utilize security equipment that does not audio record automatically.
   • Any recordings of videoconferences should be made clear and explicit.
2. Establish Clear Policies Relating to Audio and Video Recording in the Workplace:
   • Adopt policies that prohibit unauthorized audio or video recording in the workplace.
   • Provide clear and compelling reasons for the policy and include a carve-out for employee rights under the National Labor Relations Act.
   • Communicate these policies through a written handbook and training.
3. Stay Informed About State Law:
   • Know whether your worksite is in a one-party or two-party consent jurisdiction.
   • You may also need to understand the law where employees travel and record conversations.
4. Respond Appropriately to Suspected Workplace Recordings:
   • Avoid unlawful retaliation if recordings relate to protected activity.
   • Consult qualified counsel before disciplining employees.
5. Train Management on NLRA and OSHA Rights:
   • Supervisors should understand employee protections under labor law and during investigations.

7. Conclusion

The recording of workplace conversations—whether by employees, employers, or government agents—implicates a web of state laws and federal protections. Employers must address the issue with sensitivity and awareness of the risks. When in doubt, seek legal guidance to avoid missteps that could lead to criminal liability, civil suits, OSHA violations, and unfair labor practice charges.