Privacy Laws in the Workplace
An essential factor in determining whether one can legally record sound in the workplace is an understanding of the overarching private and public workplace privacy laws that apply in one’s state, or locality. While laws change frequently and occasionally any corporation or workplace should have an attorney that reviews applicable laws in their jurisdiction to ensure they are in compliance. The potential issues are relevant in both the private sector and public sector (e.g. for governmental employers) .
At the outset, one must understand that there is no all encompassing federal workplace privacy law that applies to all persons at all times. Rather, there are a patchwork of multiple federal laws that together form the scope of workplace privacy rights. For example, the Fourth Amendment protection against unreasonable search and seizures may protect unlawful eavesdropping and wiretapping. Likewise state laws governing privacy may also apply. These laws vary by state and therefore it is important to consult with a lawyer licensed to practice in the relevant jurisdiction.
Federal and State Laws
The question of whose permission is needed to legally record workplace conversations is further complicated by the patchwork of federal and state laws governing audio recordings. While federal law provides a baseline standard, it does not preempt state legislation and employers may find themselves subject to stricter state guidelines that, when violated, could be the basis for costly civil and even criminal liability. Generally speaking, the California Invasion of Privacy Act (CIPA) requires all parties to a conversation consent to any audio recording of that conversation, regardless of whether the communication is in person or by telephone. Moreover, civil and criminal liability attaches to an employer who intercepts and records a private conversation between two of its employees regardless of whether any of the participants were aware that they were being recorded. Although CIPA provides for lawsuits of this nature to be brought only by the individuals whose rights have been violated under the statute, the California Labor Code contains a "sick leave and safety" or "whistleblower" retaliation provision that permits current and former employees to bring lawsuits against their employers for inter alia interfering with the exercise of their rights to disclose information they believe to be evidence of noncompliance with state or federal law, a rule, a regulation or a policy related to salvage or caps on hospital charges. This provision is enforced through an "aggrieved employee" or "qui tam" lawsuit in which, virtually always, the employee, as plaintiff, sues his or her employer, as defendant in the name of the people of the State of California. In recognition of the public interest in such lawsuits, the qui tam doctrine allows an employee to collect a hefty bounty in the majority of such cases when the employer is found to have violated the law. To be sure, ยง 1102.5 would almost always allow such a lawsuit to be brought in order to recover the significant financial penalties provided for in the statute, but the most significant takeaway from this litany of detail is that even the act of recording a conversation without complying with the strict principles set forth above can itself form the basis for a qui tam lawsuit being brought against the employer by a disgruntled employee in a manner not necessarily governed or regulated by the privacy rules so often talked about in the press. In addition to California, expect such rules and the liability attendant therewith to be expanded and similarly enforced in Massachusetts, Oregon, Michigan and Washington, all of whom have actual mens rea requirements for unlawful interception of wire, electronic or oral communications. Expect similar rules to continue to evolve in other states, including Illinois, Florida and upstate New York, and watch for vigorously contested litigation testing the scope of the statutory safe harbor afforded to employers on the federal level by the National Labor Relations Board under Section 7 of the National Labor Relations Act in lawsuits brought by employees under competing state privacy laws.
When Is It Legal to Record at Work?
Even absent consent, the law may allow recording under certain circumstances. Within a workplace, some courts have found that audio and/or video recording is legal without consent if, for instance, the recordings are made openly in public areas of a workplace where employees have no reasonable expectation of privacy. In an Office of Privacy Protection Legal Advisory, the State of California, Department of Consumer Affairs has stated that no such reasonable expectation of privacy exists where an employee is "on notice" that he or she is in a setting where a recording device could be used, such as a lobby or cafeteria. In addition, some courts have allowed secret recordings (even if workplace conversations had an expectation of privacy) when it is part of an investigative effort concerning improper behavior in the workplace, such as embezzlement or sexual harassment. Some courts have also allowed surreptitious recordings of a workplace conversation by a participant in the conversation where such recording was made with the purpose to investigate criminal activity. The real issue related to recording, however, is whether the recording will allegedly be used for purposes of blackmail or extortion; of course, the existence of such intent to blackmail and extort must be proven and then weighed against any competing interests the recording employee may have. In sum, it is never a good idea to blindside a company with a recording (e.g., of sexual harassment) after the fact because that implies blackmail; the better practice is to disclose the recording promptly and follow relevant company policies and procedures.
Penalties for Unlawful Audio or Video Recording
The potential consequences for employees and employers whose audio recording is found to be unlawful can be severe. Expenses and potential legal malpractice claims. The Jams Lunch Money Example. While I have not encountered it, there is clearly the potential that an employee who secretly audio records conversations at work could be subject to federal wiretapping charges. In addition, as discussed in Securitas Security Services USA, Inc. v. Stiles wherein one of the issues was the criminal charges that had been brought against an employee who secretly taped his bosses who had made derogatory comments about him, employers and/or their supervisory employees could be subject to criminal prosecution, civil lawsuits and/or disciplinary action by administrative agencies. Employers who are the victims of disgruntled employees who secretly record conversations and then testify about those conversations would likely have more claims for intentional torts and/or harassment. This is especially true for more egregious situations such as where the employee secretly taped conversations to support racist or sexually harassing remarks made by supervisors. Depending on the type of business , employers could suffer significant economic damages as a result of disgruntled employees who secretly tape other employees and customers or clients. This may be especially true for banks and other financial institutions that are required to keep very sensitive consumer information confidential. There could also be significant economic damages for employers who believe they were the victim of disgruntled employees who secretly tape employees and clients or customers to support allegations of discrimination. There is also the potential that employers will have higher insurance rates in the event their insurance companies are called upon to defend or indemnify the employers for these actions of their employees. There is also the risk that employers who have a "legal growth" business model will lose their business relationships with their clients and customers. For example, if a bank or other financial institution becomes aware that a company has a practice of secretly audio recording conversations with clients and customers to gather confidential and proprietary business intelligence, that company will likely be blackballed. Similar problems could arise with contractors who do not have good faith civil contracts with installers and other workers.
Best Practices When Legally Recording at Work
When it comes to the legality of recording audio in the workplace, there is no one-size-fits-all approach. The best practices for legal recording vary by industry, work environment, and individual job roles. Here are some key considerations and recommendations for both employees and employers to ensure compliance with state laws and workplace policies.
Obtaining Consent
First, employees should know that it’s always better to ask for permission to record than to make an assumption. Recording audio in the workplace is a tricky subject, what you’ll be able to do legally will depend on the applicable state law.
Second, if you need to record meetings or conversations for business purposes, it is best practice to get advance consent from those who will be recorded. This can be as simple as saying, "Can we all agree the takeaways from this meeting will be transcribed so we all have a record of our discussions and decisions?" Often, it’s hard for people to say no to this question. You’ll still want to get their consent in writing so you have a record that you have adhered with applicable two-party consent recording laws.
Third, if you are in a one-party consent state, you should still consider obtaining their consent before the recording begins. People are going to act differently, maybe not their true selves, when they know they are being recorded. So it’s best to avoid being seen as intrusive by others and losing their trust.
Maintaining Clear Policies
Beyond following all applicable recording laws, all employers should have policies in place about audio recording in the workplace. The following elements are recommended:
Related Law Cases and Precedents
One of the most embarrassing realities of the modern workplace is that so many of us have been a witness to audio-recorded conversations. If you’ve ever tried to finish a conversation with a colleague only to realize you were speaking into a phone asking a question that could be heard in the other room, you’ll understand the problem.
Although I am sure it has happened to all of us, we’ve faced this embarrassing situation by recording audio of our own for personal gain.
A carefully analyzed 2004 case between O’Bannon v. HHS held that "where one party to the conversation is by express or implied consent of the party to be recorded, then Florida law only requires one party to consent to the recording of a private conversation."
Another informative case from 2013 highlights the fact that both parties in a workplace conversation are allowed knowledge of a recording taking place.
In Cohen v. Newport, 15 Cal. App. 5th 1164 (2017), the California Fifth District Court of Appeals reviewed whether California’s electronic eavesdropping statute (California Penal Code 632) was violated when a lawful, but recorded workplace conversation was shared with a third party. The Court held that there was no violation, and there was no reasonable expectation of privacy.
Cohen sued Newport Inc. and Newport’s CEO ("Newport Defendants") for leaking the recording of a private workplace conversation between Cohen and the Newport Defendants to a Sherman Act plaintiff.
The court stated that because Cohen did not ask Newport Defendants if he was being recorded , and very little in the conversation suggested that Newport Defendants expected privacy, Cohen could not have reasonably expected his conversation with the Newport Defendants to be private.
It is also important to note that the Court specifically addressed Cohen’s motivations for recording the conversation with his employer and commented that, "the recording was not for personal amusement, but for a purpose related to the worker’s employment."
These cases highlight the fact that neither party in the workplace conversation is meant to have control over the issue of privacy to record a conversation, and to share the recording with a third party is entirely legal.
One of the most well-known cases in the employment recording world took place in 2011. In the 2011 case of Christenson v. Department of Social and Health Services, the Washington Supreme Court held that an employee has the right to record both public and private conversations.
This case, however, does not overlook any provision, offered by the employer, about what may be considered private. It will be on the employer to provide a rule or policy for what can be considered a private conversation recorded secretly by an employee without the consent of either party.