Can employees record almost anything at work now? If you’re an employer, here is what you need to know:
In the digital age of smartphones and social media, employee workplace recordings have become increasingly common, capturing moments of confrontation with rude customers or venting about work-related issues. However, in some states, employers must be aware of the broader legal implications such recordings can have in the workplace.
The prevalence of workplace recordings has led some employers to consider an outright ban on such activities to avoid potential complications. Nevertheless, federal labor law, particularly the National Labor Relations Act (NLRA), grants employees the right to record in the workplace during “protected concerted activities.” These activities include discussing wages, benefits, and working conditions, as well as union organizing and collective organizing efforts.
RECORDING POLICIES AND MORE FOR WHEN HIRING WORKERS
The National Labor Relations Board (NLRB) reinforced this protection in a recent ruling in February 2023. The NLRB found that two employees who secretly recorded management conversations engaged in protected concerted activity as they were concerned about potential retaliation for their unionization efforts.
However, this protection under the NLRA does not necessarily give a party the green light to record in the workplace. Workplace recordings may inadvertently violate wiretapping laws, privacy laws, and confidentiality and trade secret concerns. Several states have specific wiretapping laws that prohibit recording conversations without the consent of all parties involved, potentially rendering some employee recordings unlawful.
Employers must tread carefully when implementing recording policies. A blanket ban may violate NLRA rights, while a laissez-faire approach may jeopardize the security of confidential information. Employers are encouraged to craft tailored workplace recording policies that protect sensitive information and respect employee rights to engage in protected concerted activities under the NLRA. Striking the right balance will be crucial for California businesses to navigate this complex legal landscape effectively.