Audio and video recordings in the workplace are a big topic right now. News and social media are buzzing about “tapes” – Michael Cohen’s tapes, does Vladimir Putin have tapes, Access Hollywood tapes – but what does this mean for everyday people, who all have the ability to create audio and video recordings via their cell phones, laptops and tablets?
The answer is a lot more complicated than you might expect. Contact our office today at 312-878-6008 to discuss how audio and video recordings in the workplace may affect your business or if you require assistance investigating an allegation of an improper recording.
Federal law and many state laws permit the recording of audio conversations if one of the parties to the conversation consents to the recording. This is called “one-party consent” and means it is legal to record your own conversations and phone calls, even if the other people in the conversation don’t know about it. New York permits recording with “one-party consent” – so it was not a crime for Michael Cohen to record his calls and in-person conversations, at least so long as the calls were local ones.
Some states only permit making audio recordings if everyone participating consents to the recording. This is called “two-party consent” and means that it is only legal to record conversations and phone calls if everyone knows and agrees to it. This is why you hear the “this call may be recorded” message when you call customer service to complain about your phone bill or to get cable installed.
You also should know that federal and state laws may have exceptions – permitting the government to tap phone calls with a warrant, allowing employers to record calls on phones provided to employees, permitting recordings made in public places or by homeowners on their own property. These exceptions vary from state to state. You should also know that the laws regarding audio recording don’t apply to recordings that are video only.
So what does this mean in the workplace? What should I know as an employer or as an employee?
The first thing you need to know is simple – just because an action isn’t illegal doesn’t mean it’s a good idea. The second thing is that perfectly legal actions can result in civil lawsuits, termination of employment and other negative consequences.
Employers should consider adopting and enforcing policies regarding both audio and video recording in the workplace and consult an attorney about your policies and practices. Here are some common questions and concerns:
- Video and audio-video security systems need to comply with federal and state laws. Video only systems need to be positioned away from areas where employees (and customers) have an expectation of privacy such as bathrooms, locker rooms.
- Record or monitor employee phone calls only if they are made to or from restricted phone lines with the proper notifications given to all participants. Employers sometimes record phone conversations to discourage employees from making or receiving personal calls on the job. Needless to say, this practice makes employees disgruntled, not more productive – and may violate the law.
- I discourage employers from recording in-person conversations with employees or conducting audio surveillance in the workplace. This practice often leads to capturing conversations between other employees, customers or guests where appropriate notification and consent is not given.
- Adopt well-considered policies restricting the use of video and audio recording at work. An employee who takes a video selfie at work and posts it to social media could be violating the law! The employee also may be violating the privacy rights of co-workers, customers and guests, inadvertently disclosing trade secrets, or just airing company dirty laundry.
Employees should also think carefully before making recordings at work or in work-related situations.
- Employees often want to record telephone or in-person conversations with their manager or HR, thinking that this will protect them from being fired or disciplined, but it may just be a violation of the law if the employee OR the manager/HR is in a two-party consent state.
- Even if a recording is made legally, it will not protect you from being fired or disciplined. In fact, your employer may choose to fire you because you secretly recorded a conversation. An employee can legally be fired for making a secret recording of a phone conversation or in-person meeting.
- Learn about your employer’s policies regarding video and audio recording, photography and cell phone use in the workplace and/or while on company business. Following the rules can keep you out of trouble.
- Use common sense and respect the privacy of others. We all have advanced recording devices at our fingertips – the days are long gone James Bond had to hide a cassette tape recorder in a book or a camera in a pen (or since Maxwell Smart hid a phone in his shoe and everywhere else). Making inappropriate and unwelcome recordings can get you fired, sued or even arrested.
To discuss the ramifications of an employee or employer making audio and video recordings in the workplace, contact our office today for a free consultation at 312-878-6008.