Is it legal for employees to record in the workplace? It depends.

There have been a number of high profile news stories lately regarding audio or video recordings in the workplace, including recently released conversations from former White House special assistant Omarosa Manigualt Newman and a viral video of conditions at a Popeyes Chicken franchise in the metro Detroit area.

As an employer, this may have left you wondering if it is legal for your employees to record conversations with their supervisors or other coworkers. It depends on a few factors:

  • What is the law in your state? Most states, including Michigan, only require the consent of one party in a conversation to legally record. In other words, an employee may legally record a conversation they are a party to without giving the employer notice. This is known as “One-Party Consent.” There are 12 states, which require either “All-Party Consent” or “Two-Party Consent” to record a conversation, meaning that everyone involved in the conversation or phone call must give consent before any recording begins.
  • Does your company have a policy for workplace recordings? Many employers have company policies prohibiting the recording of conversations with managers, co-workers or customers. These policies are permissible as long as they are not overbroad and do not violate an employee’s rights under the National Labor Relations Act for protected concerted activities such as documenting unsafe working conditions or federal and state whistleblowing laws.
  • Does the recording contain private information? Even in a One-Party-Consent state, the disclosure of confidential information, such as information covered under the Health Insurance Portability and Accountability Act, may violate common law privacy rights.

Most employees have easy access to a recording device through a smartphone, so there are a few steps employers should take to minimize legal exposure:

  1. Train supervisors and managers who may need to have tough conversations with employees in performance reviews, disciplinary actions or terminations so that they are cautious in what they say and stick to the facts of the situation.
  2. Develop a workplace recording policy if you don’t yet have one and include it in your employee handbook. It should define legitimate business reasons for the policy (for example, protection of proprietary information) and should not allow an employee to reasonably interpret the policy as prohibiting them from protected activity under the NLRA.

Do you need more information about this topic or help developing a handbook policy regarding workplace recording? BCN Services can assist you with this or with a supervisory training program. For more information, contact us at 1-800-891-9911.

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Alicia Freeman, Operations Manager