Many employers want to be able to monitor their employees’ communications–including phone calls, emails, and instant messages–with or without notice. Some employees may want to secretly record unsafe working conditions or harassing behavior. However, both employers and employees have an interest in workplace privacy and confidentiality.
Given the ease in which employers can monitor employees’ use of computers along with the ubiquitous nature of cell phones allowing employees to record conversations or take photographs with the tap of a finger, what limitations–if any–should be placed on workplace monitoring and recordings?
Employers wishing to monitor, record or videotape their employees
Employers may have very good reasons to monitor and record their employees communications or actions from security cameras to discourage theft to monitoring of phone calls to ensure quality. These days, most employees expect some type of workplace monitoring. In a Pew Research Center study, 54% of those surveyed indicated that it would be acceptable for their employer to install cameras to monitor the workplace and use the footage to measure employee attendance and performance following a series of workplace thefts.
Workplace monitoring is subject to various federal and state laws including the Electronic Communications Privacy Act of 1986. That law does allow employers to monitor certain communications for legitimate business purposes–for example, to record employees’ incoming and outgoing calls in ordinary course of business. However, complications can arise if such monitoring or recording is non-compliant or infringes upon an employee’s reasonable expectation of privacy.
Accordingly, any workplace monitoring should be conducted in an ethical and respectful manner and should be as transparent as possible. This means that employers who will be monitoring computer use should let their employees know in advance that they may be monitoring their computer use on company owned computers–for example, whether that use is professional or personal, and whether that use occurs during working times or break times.
Likewise, employers wishing to conduct video surveillance should let employees know in advance and should make sure that such surveillance occurs only in non-private workplace areas – where employees would not have a reasonable expectation of privacy. When challenged, if not regulated directly by state law, most courts will conduct an analysis of the employer’s legitimate need to conduct the surveillance as compared to employees’ reasonable expectation of privacy.
Employers wishing to place GPS devices on employer vehicles or to use “geotracking” apps on a cell phone to track an employee’s location should do so cautiously and must check their state’s law first, as the laws surrounding electronic tracking do vary. (For more information on electronic tracking in the workplace, see our recent article on this related topic).
Lack of transparency can cause legal headaches and erode employee morale. Accordingly, employers wishing to conduct workplace monitoring should draft and publish a policy in their employee handbook which outlines the type of monitoring that will be conducted. Employees don’t want to feel like “Big Brother” is watching them. This means that employers should also communicate their business reason for the surveillance they will conduct. Under no circumstances should workplace monitoring ever be done to harass or chill any employees from engaging in any federally protected rights.
Employers wishing to limit employees from audio or video recording in the workplace
Employers who wish to prohibit employees from surreptitiously recording workplace conversations must also consider state and federal laws. Recently, the Second Circuit Court of Appeals upheld a decision by the National Labor Relations Board which found that an employer’s particular policy banning all audio and video recording without consent of a supervisor or all parties to the conversation violated employees’ Section 7 rights under the National Labor Relations Act. Section 7 provides that employers may not interfere with employees’ rights to engage in protected, concerted activity to join together to improve the terms and conditions of their employment.
Notably, the decision stated that the ruling does not invalidate all employer rules regulating employee recordings, but instead provided that such policies should be narrowly drawn so that employees will reasonably understand that Section 7 activity is not being restricted. Other courts to have considered this issue in light of a Section 7 challenge have indicated that an overriding interest could also justify a ban. For example, one court upheld a ban on employees’ recording in a hospital where the hospital had an interest in protecting the privacy of its patients.
Even so, employees who secretly record unsafe working conditions or discrimination do have other workplace protections under other state and federal laws. For example, administrative review board decisions have found that employees who secretly recorded workplace conditions may be protected under various whistleblower laws including OSHA, Sarbanes-Oxley, and Title VII.
Proceed with caution
Until more guidance is received, employers wishing to limit recording devices in the workplace should implement a policy which provides that employees are prohibited from using audio or visual recording devices in areas or instances where client privacy, trade secrets, or confidential business information may be compromised.
In addition, in states which prohibit individuals from recording conversations unless all parties to the conversation consent to the recording (so called “two party consent” states), employers may wish to reference such laws in their own policies to deter secret recordings, so long as employees understand that the company is not trying to deter any rights that the employees have to engage in protected, concerted activity.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly 13 years before joining Associated Financial Group’s HR Consultants in 2015. She educates and advises human resources professionals and employers on a broad range of employment issues and best practices and costly litigation compliance topics including respectful workplace practices, unlawful harassment avoidance, wage and hour issues, medical leaves and accommodations, as well as federal and state discrimination and anti-retaliation issues. Pintar received her undergraduate degree from the University of Wisconsin-Milwaukee, magna cum laude, and her law degree from the University of Wisconsin, cum laude.
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