“Check. Check. Check—one—two.” If you’ve ever done a microphone check, you’ve probably said those exact words. Of course, I prefer random useless facts, like, “did you know Thomas Jefferson and John Marshall were second cousins (once removed) and they hated each other?” Anyway, there’s something about being recorded that makes me want to ensure I’m speaking clearly and precisely. Easy enough as long as I’m aware I’m being recorded. The problem is, there are microphones and recording devices everywhere! (Oh, no! Please don’t start with the conspiracy theories and big brother stuff again!) Every smartphone and tablet has a microphone and recording app. There are even pens and other office supplies with built-in recording devices! At any moment, every word you say could be recorded. Including that comment you made last week about where the new employee could stick their accommodation request to bring their emotional support Mastiff (appropriately named Thor) to work every day. (insert thunderclap followed by ominous music)
Yes, cellphone videos are a part of everyday life. We’re all inundated with cellphone videos of everything from adorable babies and crazy cats to tragic accidents and heart-wrenching memorials. For many, video recording everything—from the mundane to the incredible—has become as much a reflex as taking their next breath. Unless they don’t want you to know they’re recording. In those situations an old school audio recording does the trick.
How many times have you been in a meeting where someone looks at their cellphone and taps the screen. Were they rejecting an incoming call, checking for a text or email they were expecting, or were they tapping an app to record what was being said? What about that phone call last week where things got heated before you realized they had you on speakerphone? Was that being recorded? I don’t mean to cause paranoia, but it happens more than you think it does. A lot more.
Wait! Time out! Isn’t recording someone without their knowledge or consent illegal? (You’re gonna hate this answer…) Maybe. In the U.S., eleven states (California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington) have laws that require consent from everyone involved, i.e., “two-party consent,” before conversations can be recorded. That means if you and I are in one of the other states—like New York or Maine—or the District of Columbia, and we’re having a conversation, I can record our conversation without your knowledge or consent.
OK, then we can add a policy to our employee handbook prohibiting employees from recording any conversations or meetings, right? (You’re really gonna hate this answer…) Yes, and no. Yes, you can have a carefully-crafted policy addressing recordings in the workplace. No, your policy can’t implement a total prohibition on recordings (audio and/or video) in your workplace. That’s because Section 7 of the National Labor Relations Act (“NLRA”) protects the employees’ right “to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Further, under the NLRA, employers are prohibited from interfering with, restraining, or coercing employees from exercising their Section 7 rights.
Gotcha, Mr. smarty pants, alphabet soup rules guy! We aren’t unionized, so that doesn’t apply to our company! Sorry, I’m still right. (But, let’s not stoop to name-calling or gloating.) Section 7 of the NLRA applies to both unionized and non-unionized employers.
As with many other employment policies, there’s no one-size-fits-all template that will work for all employers. To craft an appropriate policy for your company, you should first consider several factors, including the industry, applicable state and federal laws, security risks, business justifications, and company culture. Therefore, the workplace recordings policies for a healthcare facility, restaurant, nuclear power plant, brewery, accounting firm, gift shop, museum, and automobile dealership will each be different.
That’s a wrap on another Fridays with Frank. Thanks for spending a small part of your day with me, and have a great weekend!
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Please feel free to contact Frank at firstname.lastname@example.org, or 585-380-1566 with questions or for more information.
Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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