With the growing advancement of recording technology and its application in the workplace, some employers have established electronic surveillance recordings of workplace activities as well as recordings of in-person staff meetings for future reference. Employers, however, also need to be aware of federal and state laws that place restrictions and penalties on wiretapping. While such laws have been generally applied when one party listens to phone conversations without the other party’s knowledge, differences in state laws exist.
Several states have specific laws that prohibit to some degree the recording of conversations. For example, a number of “two-party (or all-party) consent” states (e.g. California, Florida, Illinois, Massachusetts, Michigan, Pennsylvania, Washington) require written or verbal consent from each individual participating in the communication. Other states (e.g. Arizona, Missouri, New York, Tennessee, Texas) are considered “one-party consent” states in which an individual may lawfully record a conversation in which he or she is participating if, at least, one of the parties in the communication consents…Note that, since the consenting party can also be the one who records, the conversation may simply be recorded without any awareness from others taking part in the very same communication.
So, what is the impact to employers? It depends on the state(s), laws, and industries in question. In “all-party consent” states, an individual may unlawfully record communications in the workplace but can be subject to criminal and civil penalties. Employers, however, have much less protection in “one-party consent” states. State data security and privacy laws, such as those in Nevada and New Hampshire that took effect this past January, can impose added obligations for companies that do business in certain states. The federal Health Insurance Portability and Accountability Act (HIPAA) impacts health-care providers and their handling of protected health information (PHI) with specific provisions. Additionally, certain recordings (e.g. to document a sexual harassment claim) may be considered protected employee activities.
In turn, take the time to review your company’s current workplace surveillance, monitoring and wiretapping practices and consider the following action items to ensure compliance with laws and regulations:
- Develop workplace policies that describe how employer-sanctioned wiretapping and surveillance, if applicable, will be used in terms of business operational needs.
- Develop policies forbidding employees to conduct any workplace recordings without the approval and consent of the employer.
- Employers should obtain written consent (signed and dated) from each worker or attendee involved with the workplace (even for meetings) who may be “recorded”.
- Train supervisors on effective communication skills and management of sensitive information.
- Consult an HR Professional regarding how to address any employee-initiated recordings, which can often be a by-product of a more significant underlying workplace issue.