With the frequent presence of smartphones in the workplace, a new problem for employers is on the rise: employees recording conversations with managers. This can be powerful evidence in a subsequent charge or lawsuit.
Most states on the East Coast and in the South are “one-party” states, meaning only one party needs to know of the recording or consent to it. Virginia is among those one-party states. The only states in the East and South that require consent of all involved in the recorded conversation are Florida, Maryland, Pennsylvania, Massachusetts and New Hampshire. In all of the other states employees can legally record discussions with managers without the knowledge or consent of the managers.
Some attorneys suggest in rather knee-jerk fashion that employers should simply have a policy of no-recording of workplace discussions. That may work in some instances. But, it creates two other potential problems. First, the employer may have reasons to want to record discussions. Second, many attorneys forget that a no-recording rule may violate provisions of the National Labor Relations Act. (And remember, that Act applies in some respects to all employers, not just those subject to unions.)
The National Labor Relations Board has been inconsistent on this subject in recent years. In 2004, it found that no-recording rules violated the Act. Then, in December of last year, changed its position to allow such rules – at least in some cases. However, effective arguments can be made that a blanket rule prohibiting all recordings could violate other provisions of the Act such as recording unsafe workplace conditions, discussions about terms and conditions of employment, and inconsistent application of employer rules.
If an employer considers implementing such a policy, it should also consider limiting the restrictions accordingly. But, recognize that may obviate the usefulness of the policy in many instances.