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As Employees Use Smartphones to Record, Companies Try to Keep Up
 

By Toni Vranjes  5/27/2014
 

Just about every place you go, everywhere you turn, people are tapping on their smartphones. And as the devices get more sophisticated, the legal issues surrounding them are getting more complicated.

Businesses are grappling with all of these issues in the workplace. With their electronic devices, workers can record discussions in the office, or take pictures or videos of co-workers.

Employees might record company-wide meetings, tape disciplinary meetings with HR or even record perceived misconduct at work. So a question arises: Should employers enact “no recording” policies?

A general guideline is that a company can have such a policy–as long as there’s a valid business reason for doing so.

California Law

California has strong privacy protections, said A. Marisa Chun, a trial attorney at McDermott, Will & Emery in Menlo Park, Calif.

Under Penal Code section 632, it’s illegal to record a confidential communication without the consent of all parties. An illegal recording usually isn’t admissible in court.

California is one of a dozen states that require the consent of all parties to the communication. In contrast, the other states have “one-party consent” laws.

In California, the penal code defines “confidential communication” as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined” to only those parties. It excludes situations in which the parties “may reasonably expect that the communication may be overheard or recorded,” such as public gatherings and governmental proceedings open to the public.

A violator may face criminal penalties of a fine, imprisonment or both.

In addition, Penal Code section 637.2 permits civil actions for violating section 632. An injured party can sue for $5,000, or three times the amount of actual damages—whichever amount is greater. The injured party also can seek injunctive relief.

Other protections are also in place. For instance, Californians have a common-law right to privacy. In addition, Labor Code section 435 bans audio or video recording of employees in restrooms, locker rooms or rooms designated for changing clothes, unless there’s a court order.

Video-Only Recording

Some California courts have applied Penal Code section 632 to video recording that doesn’t capture voice, said Denver attorney Philip Gordon, chair of Littler’s privacy and data protection group. Two of these cases are California v. Gibbons and People v. Nazary.

At least one California appellate court disagreed with Gibbons, Gordon told SHRM Online. In People v. Drennan, the court stated that the “statute is replete with words indicating the Legislature’s intent to protect only sound-based or symbol-based communications.”

National Labor Relations Board

Employers also should be aware of a recent case involving Whole Foods Market Inc. The company banned employees from recording conversations in the workplace, unless there was prior approval from management.

Whole Foods said that the purpose was “to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.”

According to the general counsel of the National Labor Relations Board (NLRB), that policy violated workers’ rights under Section 7 of the National Labor Relations Act(NLRA). The general counsel maintained that employees have a legally protected right to record co-workers and management, as noted by Gordon on the Littler blog.

Last year, though, an NLRB administrative law judge rejected the general counsel’s position and upheld Whole Foods’ policy, Gordon noted.

Nevertheless, the issue is still in flux, and the NLRB hasn’t issued a definitive ruling on the issue, said Gordon.

What Should Businesses Do?

Managers should know how to react if an employee asks to record a conversation, or if a worker wants to share a recorded conversation. It’s also helpful to clearly state the employer’s policies in one or more company documents, attorneys say.

When an employee approaches you: An employee might seek permission to record a workplace conversation for various reasons. For example, a worker might want to report alleged sexual harassment to a supervisor or HR, and the employee could ask to tape the conversation.

“Employers need to decide if they want to give consent,” said Michelle Brauer Abidoye, a litigator and trial attorney at the Los Angeles office of Ford & Harrison.

Companies might want to tackle each request on a case-by-case basis, depending on the specific circumstances. If they do agree to the request, Abidoye advises employers to also record the conversation.

Meanwhile, Gordon recommends that California employers treat video-only recording the same way as audio recording. If an employee has a video-only recording from the workplace and wants to share it with management, the company should inquire about the circumstances in which the video was made. Also, the employer should ask if all the parties consented to the recording, Gordon told SHRM Online.

Company policies: It’s a good idea to state general recording policies in the company handbook, said Abidoye.

If a company plans to implement a “no recording” policy in the workplace, it should have a carefully drafted policy that explains the legitimate business purpose, Gordon emphasized. The employer can’t interfere with employees’ rights to discuss terms and conditions of employment under Section 7 of the NRLA.

There are a number of legitimate business reasons for these types of policies, Gordon told SHRM Online. These include:

*Preventing illegal recording and protecting privacy rights.

*Preventing the possible “chilling effect” that recording could have on the free flow of information in the company.

*Protecting confidential company information, such as trade secrets.

Los Angeles attorney Nicky Jatana, co-head of Jackson Lewis’ privacy, e-communication and data security group, said that employers typically are most concerned about two issues when it comes to workplace recording. Those issues are confidential personal information about employees and proprietary company information.
Employers can state their policies in various documents, including their confidentiality agreements and trade-secret policies, said Jatana.

Chun said that companies can take several steps to protect employees’ “right to be free of privacy violations” caused by audio and video taping at work.

For instance, the employee handbook should include a policy protecting the right to privacy, she said. The employer should explain the purpose of the policy, describe the types of audio and video recording that are prohibited, and include the consequences for violating the policy.

Employees also should sign a notice indicating they’ve read the policy and agree to comply, Chun added. In addition, companies should encourage employees to report any objectionable recording at the workplace.

Also, employers can provide training to employees and managers regarding the privacy policy, Chun said.

Assume your comments are being recorded: As you’re going about your daily work activities, it’s a good idea to assume you’re being recorded, according to a Daily Recorder article by Shaw Valenza lawyers Jennifer Brown Shaw and Katie Patterson.

Abidoye said that’s good advice. If an employee records you saying something objectionable, your comments will be caught on tape for others to hear—even if they’re inadmissible in court.

It would be “very difficult to deny” that you made the comments, Abidoye observed.

Toni Vranjes is a freelance business writer in San Pedro, Calif.

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