Imagine that an employee asks to come to your office to address concerns about workplace harassment. Pursuant to the company’s open door and non-harassment policies, you promptly schedule a meeting. When the employee arrives, she sits down, sets her smartphone on the desk facing you, and turns on the video camera before beginning to speak. Can you instruct her to turn off the recording device? Can you stop the meeting if she refuses? Would the answer change if the recording was surreptitious?
The answer to questions like these have become more blurry since the decision last year by the National Labor Relations Board (“Board”) in Whole Foods Market, Inc. Conventional wisdom before Whole Foods supported the view that, as a general rule, employers were on safe ground prohibiting audio or video recording in the workplace. In Whole Foods, however, the Board held that an employer may not lawfully adopt a work rule prohibiting employees from workplace recording, if the employees are acting in concert for mutual aid and protection and the employer cannot demonstrate an overriding business interest.
According to the Board, it is unlawful for an employer to prohibit employees from recording images of protected picketing and documenting unsafe equipment or workplace conditions. Similarly, an employer may not prohibit an employee from recording discussions with others about terms and conditions of employment or documenting inconsistent application of employer rules. Perhaps most troubling, even if the conversation or event that the employee wishes to record is not legally protected, the Board has ruled that an employee may record evidence to preserve for later use in administrative or judicial forums in employment-related actions. Get the picture?
Presently, the Whole Foods decision is on appeal before the U.S. Court of Appeals for the Second Circuit. Until then, employers have a few options to address recording devices in the workplace:
- End the meeting. Employers that do not want conversations with their employees recorded could simply decline to participate in any conversation in which an employee is knowingly recording. This option, however, has several risks, particularly in a harassment scenario where the employer’s liability hinges on whether it took prompt remedial measures that were reasonably calculated to stop the allegedly unlawful conduct.
- Narrowly tailor the rule. An employer can ensure that its ban on workplace recording is not so overly broad that employees would reasonably construe it to prohibit protected concerted activity. For example, the recording prohibition could be limited to legitimate business interests, such as recording trade secrets, proprietary processes, confidential technology, medical privacy, and information about vendors, customers, and suppliers.
- Carve out “two-party consent” states. Some states, such as California, Florida, Massachusetts, Pennsylvania, and Washington, require the consent of both parties to a conversation before recording. Those states potentially could be carved out with a revised narrow rule prohibiting workplace recording.
- Say “cheese” (but not much more). Perhaps the least risky option might be to rescind all rules prohibiting recording in the workplace, assume that everything is being recorded at all times, and act accordingly. If a workplace recording situation arises, an employer could address it on a case-by-case basis and determine whether the conduct violated another existing policy (e.g., anti-harassment) and whether the recording was otherwise protected by law. Another approach that an employer should consider is, in meetings, giving employees an opportunity to say what they wish to say while recording but keeping its own remarks to a minimum. An employer should take the comments under advisement and then respond in writing.
A version of this article originally appeared in the Take 5 newsletter “Five New Challenges Facing Retail Employers.”
 See Clare O’Connor, Does Jimmy John’s Non-Compete Clause For Sandwich Makers Have Legal Legs? Forbes (Oct. 15, 2014), http://www.forbes.com/sites/clareoconnor/2014/10/15/does-jimmy-johns-non-compete-clause-for-sandwich-makers-have-legal-legs/; see also Steven Greenhouse, Noncompete Clauses Increasingly Pop Up in Array of Jobs, New York Times (June 8, 2014) http://www.nytimes.com/2014/06/09/business/noncompete-clauses-increasingly-pop-up-in-array-of-jobs.html?_r=0.