By: Tracy M. Evans, Esq., Associate, Saxon Gilmore & Carraway, P.A.
In today’s world, recording devices come cheap, small, and convenient. Anyone carrying a smart phone has a recording device ready for instant use. Apps such as Snapchat, Instagram, and Facebook make recording, sharing, and posting quick and easy. With this technology so readily accessible, the temptation to hit record in a variety of life-circumstances has become a widespread habit.
With such widespread accessibility and use, it should come as no surprise that employees may feel compelled to utilize this technology in the workplace, particularly when facing adverse employment action or discipline. Unrestricted employee recording in the workplace should be a source of concern for employers, especially considering the types of conversations or interactions that may be recorded, including exchanges with supervisors, coworkers, customers or clients, disciplinary meetings, workplace investigations or employee terminations. Recordings by employees are likely to be conducted on a biased, selective basis, and could have a negative effect on client relations and public perception, and could also potentially subject an employer to unwarranted litigation.
Employers should not rely solely on federal and state wiretap laws as the sole method of regulating employees’ recording activities. Florida’s wiretap law is stricter than federal law and requires the consent of all parties to a communication, as opposed to the consent of only one party. Florida law, however, makes an exception for the recording of communications where there is no reasonable expectation of privacy. Communications occurring in private homes are more likely to carry a reasonable expectation of privacy, but communications occurring in business places or private offices are less likely to carry a reasonable expectation of privacy protected under Florida’s wiretap law.
Because employers are not guaranteed protection under Florida’s wiretap law, they should consider instituting their own polices against recording in the workplace. While employers have the ability to regulate employee workplace conduct, a complete ban on recordings in the workplace should be carefully considered in light of the National Labor Relations Act (“NLRA”), whistleblower statutes, and nondiscrimination laws.
Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Complete bans against recording in the workplace or the possession of recording devices in the workplace are likely to be found overly broad where the policies can be reasonably construed to prohibit an employee’s right to record protected Section 7 activity.
Similarly, federal whistleblower statutes may provide protection to employees who, in good faith, record conversations and activities they believe to be unlawful activities. Administrative review board decisions have taken a broad view of what is protected activity under various whistleblower statutes, and have consistently held that recording for this purpose is a protected activity.
Federal nondiscrimination employment laws including Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, provide limited protection to employees who secretly record workplace conversations and activities. In considering whether an employee can be terminated for violating workplace policies against recording, the majority of courts have upheld the termination, even where the recording was for purposes of gathering or preserving evidence in support of a discrimination claim. Often, however, courts will look closely at the individual circumstances of each case, including whether there were alternative methods of gathering the evidence that would not be in derogation of the employer’s recording policy.
In determining whether to implement a no-recording policy or the policy’s scope, employers should consider the possibility of legal challenges associated with the policy. To minimize the risk of legal challenges, employers should avoid instituting a complete ban against recording in the workplace, and should instead place specific limits on when and where recording is prohibited. A no-recording policy should clearly state the policy’s purpose, and include an express disclaimer against the prohibition of protected activity. The stated purpose should be consistent with the employer’s other policies and practices to show the employer’s strong commitment to that purpose. To the extent that the employer has any legal or industry requirements to safeguard certain information, these requirements should also be articulated in the employer’s no-recording policy to show a legitimate business interest for the policy. We recommend employers consult with an attorney before instituting a no-recording policy to ensure proper safeguards are taken to minimize any possibility of legal exposure.
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