Imagine you are conducting a workplace investigation after an employee complained of harassment by his supervisor. The supervisor walks in the room, grabs a cell phone, fumbles with it but doesn’t announce his intention to record the conversation. It becomes the elephant in the room. You suspect that the meeting is being recorded and yet no one acknowledges it. The tense workplace investigation has only become tenser and more uncomfortable.
How should employers handle covert recording by employees? Let’s examine those 2 questions.
Is it Legal? One-party versus two-party consent states
The majority of the states, like Virginia, are a “one-party consent” state. This means that at least one party on the recorded conversation (or call) must know that the call is being recorded. An employee can record a conversation as part of a workplace investigation without the employer’s consent or even knowledge. Employers cannot prohibit the recording.
We all know customer service recording informing us that “this call may be recorded for to help us serve you better.” Well, this provision is for the 11 states requiring two-party consent: California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. In those states, both parties in a conversation need to know they are being recorded. This applies to face-to-face conversations as well as phone calls.
Why does it matter?
If no legal action ensues, being recorded is uncomfortable but is not illegal in most states. However, when a workplace investigation uncovers unsavory activities, chances are those involved will “lawyer up.” The recordings could be used as evidence in legal proceedings.
Although admissibility in court of a recording might be questionable, quotes could be extracted from the conversation and put the employer in a less than flattering light.
The EEOC estimates that a third of employees provide digital evidence, audio or video recordings, to support their charge of discrimination or retaliation. Attorneys representing employees say that at least half of their clients have audio or video recordings.
Can you protect your business from covert recordings?
In some circumstances, employers may adopt policies prohibiting clandestine workplace recordings. There must be good business reasons to enforce the policy such as the need to protect trade secrets, confidential information, and proprietary systems.
The policy must be carefully worded and not interfere with employees’ rights to engage in “protected concerted activity.” These protected activities include actions taken by one or more employees to improve pay, work conditions or safety. So, recording by employees of unsafe work practices would probably still be acceptable regardless of policy.
What should employers do in the face of covert recording?
- Assume employees are covertly recording conversations with their supervisor,
- Inform supervisors that those recordings are probably legal,
- Decide how your organization will handle covert recordings by employees,
- Train supervisors in the art of employee relations!
When was the last time you trained supervisors and managers on employee relations?
Chances are you are due for a refresher. Contact Anne-Lise to schedule your 2-hour employee relations workshop. It’s time to get this done!