Page 32 - RenderAug25

Labor and the Law
Workplace Recordings and Eavesdropping: Limiting Criminal and Legal TLiabilities
By Adam R. Young, Mark A. Lies II and Bret W. Vetter, Seyfarth Shaw LLP
he ubiquity of smartphones and sensitive security cameras have made audio recording in the workplace more common. Some recordings may be accidental while
others could be intentional attempts to secretly document workplace conversations. 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.
1-Party Versus 2-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, including New York and Texas, 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. California, Florida, Pennsylvania and Illinois are some of the 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.
What Employers Should Do About Secret Recordings
In a two-party consent state, if an employee secretly records conversations without consent from all participants, legal exposure is an issue. The employee may be in violation of the state’s criminal eavesdropping or wiretapping laws as well as company policy prohibiting surreptitious recording.
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This leaves the employer with three options: conduct an internal investigation, take appropriate disciplinary action if allowed by company policy and/or consider contacting legal counsel to evaluate civil or criminal action.
There are, however, limitations; if the recording relates to protected concerted activity under the National Labor Relations Act (discussed below), employers must tread carefully before taking disciplinary action.
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, surreptitiously or openly. 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 NLRA, employers must approach discipline with caution.
NLRA Restrictions, Covert Recordings
NLRA protects employees’ rights to engage in concerted activities for mutual aid or protection, including discussing wages, working conditions or unionizing efforts. 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.
• The employee is recording conversations about terms and conditions of employment.
•NLRB has upheld disciplinary actions where employees are not acting in concert for their mutual aid and
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