Can an employer have a policy that forbids recording conversations at work? The answer: it depends.
Recording Conversations at Work: Can You Record Your Remote Workers?
For private employers, the short answer is NO, according to the article, “Recording Conversations in the Workplace.” Employers subject to the National Labor Relations Act (NLRA)—which includes all private employers—are currently prohibited from having policies barring employers from recording conversations at work.
For public employers, the short answer is YES, for now. While public employers in New Jersey are not subject to the NLRA, they do have to comply with the Employer-Employee Relations Act (EERA).
Confused yet?
It gets even murkier when dealing with employers and remote employees, or when conversations cross state lines. To better explain, Michael Marra, co-regional managing partner of Fisher Phillips’ New York office, provides the intimate details.
Recording Rules in Each State
Whether an employee may record phone calls with his or her employer depends on which state(s) the parties to the call are in at the time of the potential recording, explains Marra.
In 38 states and the District of Columbia, recording is permitted so long as one party consents to the recording—and for these purposes, the recording party is “one party” to the conversation/recording, so in those “one-party consent” jurisdictions, the recording party may legally record the call without getting the other’s consent to do so.
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Even if the employee is in a one-party consent State, however, if he/she is speaking to someone in a “two-party consent” State, then while the recording may not be illegal, it may be that its usefulness in a legal proceeding can be questioned if the other call participant is in a two-party jurisdiction and if a resulting lawsuit takes place in the two-party consent jurisdiction.
In the other 12 States (CA, CT, FL, IL, MD, MA, MN, MT, NV, NH, PA, WA), recording without the consent of all recorded parties is illegal, points out Marra.
Federal vs. State Rules about Workplace Recording
Yet, even in those states, employers must remember that various federal statutes potentially protect an employee’s right to make secret recordings in the workplace under certain conditions.
Courts may determine that the federal statutes pre-empt the state laws in some circumstances, or that federal administrative agencies defer to an interpretation of the statutes they enforce. In those cases, despite a “two-party consent” law employers may not be permitted to punish, or even successfully bar, secret workplace recordings from evidence in a proceeding, says Marra.
“Employers that implement blanket anti-recording policies are setting themselves up for potential trouble since the law is unsettled,” said Marra.
That’s because the Second Circuit Court of Appeals is currently considering an NLRB ruling that a workplace ban on surreptitious recording violates workers’ right to engage in protected activity under the National Labor Relations Act.
“In addition, employers should strongly consider the repercussions of disciplining employees for surreptitious workplace recordings, regardless of the relevant State’s governing law,” says Marra.
The general rule under federal law is that an employer cannot record an employee without consent (or at least notification followed by the employee’s participation, which can be implied consent).
However, there is an exception to this rule known as the “extension-phone” rule, which permits recording if:
- The call being recorded must be recorded by telephone-related equipment that is furnished by a provider of wire or electronic communication service in the ordinary course of its business; and
- The call must be intercepted in the ordinary course of business of the employer so recording the call.
Courts in different federal circuits have interpreted the phrases “intercepted” and “ordinary course of business” differently, which presents challenges in determining whether an employer’s recordings are legal, says Marra.
To be, more likely than not, on the right side of the law, employers that record employee calls are well served to do so with valid business purposes in mind (quality assurance), to do so routinely and not sporadically or in a targeted manner, and to make sure employees are aware of this recording policy aimed at legitimate business purposes.
As is often the case, employers with California operations have a different analysis to conduct, so those employers should consult the California Penal Code and experienced counsel.
“Remember, however, employers, that aside from those legitimate business purposes, the resulting recordings may just as likely be used against an employer in future litigation/disputes, as for the employer, and the recording may also result in certain preservation obligations that come with expense,” says Marra.
And whether one is an employer or employee, remote or on site, remember this tip from the article “My iPhone Records Conversations and No One Has to Know: Is It Legal to Record Conversations in the Workplace?”
“At work, always communicate like you are being recorded because you might be!”
Readers, what’s your experience with recording conversations at work, particularly in a remote environment?
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