Is a Blanket Rule Barring Secret Workplace Recordings Okay?

McGuireWoods LLP has published a legal memo to employment lawyers on this question. The memo points out that state and local laws regulate recordings of private conversations. Some states permit secret recording of conversations where at least one party to the conversation is aware of the recording (single-party consent).

A workplace example? Employee has a local union rep agree to the recording, and the employee records harassing statements of a non-consenting supervisor.

Other states require every party to the conversation to give permission to be recorded (all-party consent).

The law firm recommends the website of Reporters Committee for Freedom of the Press to check out the law in all 50 states. See https://www.rcfp.org/reporters-recording-guide.

Under the Obama NLRB, employers who had blanket no-recording laws violated the National Labor Relations Act. The Obama Board allowed, for example, recordings or photos taken by employees to document unsafe workplace equipment or hazardous working conditions.

The Trump labor board reversed that policy. Blanket no-recording rules are permissible.

ProfLERoy Observation: The McGuireWoods memo omits some important considerations.

Take whistleblowers. For context, suppose a tax preparer or accountant is ordered by her boss to make an illegal ledger entry or hide income. That employee is subject to criminal liability for following an order. Granted, state law may prohibit the recording— but can that law be used to prosecute someone who is attempting to comply with the tax code and protect herself as a whistleblower? Many contexts fit this— boss tells employee not to verify employment status for immigration law, boss tells employee to sign off on jet engine maintenance when work is incomplete, boss tells employee to shut off air vent monitoring device in coal mine, etc.

And what about situations where a co-worker or supervisor sexually harasses or assaults an employee? Will the no-recording rule shield predatory behavior?

Or, what about use of recording devices on our phones to capture shootings, lesser assaults, violent threats, and similar? How far can an employer go in justifying a blanket rule?

My sense of the matter? Any blanket rule is asking for trouble. In contrast, a broad rule that has narrow and reasonable exceptions is worth considering, such as recordings in furtherance of public safety and prevention or mitigation of serious injury.

PhotoCredit: KeepCalm Studio.