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protection or the employer has an “overriding interest” to restrict the recording. For example, when the recording violates clearly communicated and lawful company policies, or it invades significant privacy interests such as recording confidential company information or trade secrets or recording private personal information.
Notably, in an aggressive NLRB decision during the Biden administration, the board determined that NLRA 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 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 regarding employee discipline for secret recordings about protected activity, particularly concerning occupational safety and health.
Interviewee Rights
During inspections or investigations by government agencies such as the Occupational Safety and Health Administration, Equal Employment Opportunity Commission or the U.S. Department of Labor, employees have certain rights including refusal of participation in interviews and the ability to have a representative of their choice be 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.
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In some states like Illinois, courts have created an exception to record police and some government investigators. We generally do not recommend recording government interviews. Instead, provide only honest answers to questions within the reasonable scope of the inspection. Management may take notes on their interview or comments by an investigator. Management notes are a more predictable and controlled format to document a conversation.
Best Practices for Employers
In two-party consent states, utilize security equipment that does not automatically record audio. Any recordings of video conferences should be made clear and explicit.
Establish clear policies relating to audio and video recording in the workplace. For example, 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 NLRA.
Communicate these policies through a written handbook and training.
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.
Respond appropriately to suspected workplace recordings. Avoid unlawful retaliation if recordings relate to protected activity. Consult qualified counsel before disciplining employees.
Train management on NLRA and OSHA rights. Supervisors should understand employee protections under labor law and during investigations.
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. R
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