Be Careful About Telling Employees They Cannot Record Conversations

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Historically, many employers have had policies stating that employees could not record conversations they had at work. Historically, your lawyers likely would have blessed such a policy, as you are unlikely to speak as freely and openly with employees if you fear that anything you say might be recorded and used against you. However, as recently as June 1, courts have come out with rulings holding that a blanket rule against recording violates employees’ rights.

The National Labor Relations Act (“NLRA”) is a law that frequently arises in union settings, but it protects all employees, union or not, who work together to improve the conditions of their employment.

In a recent case, a major grocery chain had a rule prohibiting all recording of conversations without prior management approval. The rule was challenged as a violation of the NLRA, and on June 1, the court held that the rule, in fact, was overbroad and violated employees’ rights.

The court reasoned that employees may have legitimate reasons to make recordings. They might be documenting unsafe work conditions or conversations with their supervisors about their employment conditions. And if they need a supervisor’s approval before making recordings like those, the supervisor might say no, which would prevent the employees from documenting their employment conditions. The rule was found overbroad because before making any recording – including both those protected by the NLRA and those that were not – an employee first had to get a supervisor’s approval.

However, the court did not hold that all no-recording policies would necessarily be unlawful. Situations in which employees would not be attempting to improve their work conditions would be largely unaffected by the case, and narrower rules that only addressed those situations might be allowed. There might be legitimate reasons to place some limits on recording, such as a no-photography policy in a hospital in situations where a patient’s privacy is at risk. Employers would likely be able to prevent employees from taking pictures of documents that contain trade secrets where there is no good reason why an employee would need to record them to improve their work conditions.

Employers are not unreasonable to be concerned about employees recording conversations with them, and they should strive to create a workplace that encourages honest, open dialog about work conditions instead of one in which people secretly record such discussions. However, employers must also be mindful about employees’ rights and must not sacrifice those rights to limit recording. If you are concerned that employees are secretly recording conversations, or if you feel your workplace needs a policy to address recording, contact your lawyer to help you address the situation in a manner that protects both your interests and your employees’.

Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.

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