Can your employees record you at work? The answer to this question turns on a range of laws at both the federal and state levels. State laws may require advance notice and consent. Federal law restricts wiretapping or intercepting conversations. And a recent National Labor Relations Board decision determined that employees’ right to engage in protected concerted activity may override state law prohibitions on surreptitious recording.
State Laws Related to Audio Recordings
Typically, at the state level, the analysis of whether an employee can record a conversation turns on whether the state is a “one-party” or “two-party” consent state. In a one-party consent state, such as New York and New Jersey, as long as one party to the conversation (in this instance, the employee) knows and agrees to record the conversation, there is no obligation to inform the other party. In a two-party consent state, such as California, Massachusetts and Pennsylvania, both parties to the conversation must know and agree to the recording. Courts in two-party consent states have generally held that consent can be inferred where the parties are aware of the recording and proceed with the conversation.
Some states have different rules, depending on the manner in which the recording is made. Connecticut requires the consent of at least one party who is present for recording any in-person communication, but the consent of all parties is required before recording a phone conversation. Connecticut law provides that, for phone conversations, advance consent can be demonstrated if it is expressly written or verbally memorialized at the outset of the recording, or if verbal notice of recording is provided at the outset of the recording and captured as part of the recording. The law also recognizes exceptions to record certain types of phone calls that are threatening extortion or bodily harm, making unlawful demands, or are harassing in their frequency and timing.
Violation of Connecticut’s limits on recording phone conversations subjects an individual to civil liability. Many of the two-party consent states, including California, Massachusetts and Pennsylvania, make it a crime, often a felony, to record conversations without appropriate consent.
State Laws on Video Recordings
Video recordings that also have sound may be subject to the same restrictions as audio recordings, depending on the state. In addition, even states that require only one-party consent to audio recordings (including New York and New Jersey) generally prohibit surreptitious video recordings (with or without sound) that capture individuals in a state of undress, that focus under garments, or that capture individuals engaged in sexual activity in a location where those individuals would have a reasonable expectation of privacy.
Some states go further. For example, Connecticut law makes it a felony for a person “with malice” to knowingly record the image of a person without the other person’s knowledge and consent, while the other person is not in plain view and under circumstances where the other person had a reasonable expectation of privacy.
Federal Laws on Recording Conversations
The Electronic Communications Privacy Act (ECPA) comprises a series of federal laws that restrict recording conversations and accessing and reviewing electronic records of prior communications. The wiretapping component of the ECPA places restrictions on intercepting and recording phone, digital and electronic communications. It requires one-party consent for recording in-person or phone conversations.
Workplace Recordings to Further Employees’ Collective Interests
A recent decision by the National Labor Relations Board (NLRB) in Starbucks Coffee Company, 372 NLRB No. 50 (Feb. 13, 2023), held that, even if unlawful under state law, employees’ surreptitious audio or video recordings of managers and others in the workplace are permissible if they are made in connection with employees’ protected concerted activity. The recordings at issue were made in the context of a union organizing drive. When the employees then presented them as evidence in an unfair labor practice proceeding, Starbucks had objected that the recordings were made in Pennsylvania, where as a two-party consent state, recording conversations without the consent of the other employee is a felony.
The Board noted prior decisions that have held that an employee making audio or video recordings in the workplace may be engaged in activity protected by the National Labor Relations Act. Those actions have included policing the parties’ collective bargaining agreement, preserving evidence for use in a future grievance or administrative proceeding, and documenting meetings held by the employer regarding unionization. In the Starbucks case, the employees who were leading a unionization effort testified that they had recorded meetings with managers out of concern that the employer would retaliate and to preserve evidence for any future employment-related actions they might experience. Noting that some of those recordings had been introduced as evidence in the Board proceedings and supported findings of unfair labor practices, the Board held that the recordings constituted legally protected activity. As such, the Board reasoned that enforcement of Pennsylvania’s no recording law is preempted by that federal law protection.
Starbucks also had a policy against recording conversations, which it argued in the Board case it had applied to other employees in the past (outside the union organizing context). The Board held that the existence of that policy could not override the employees’ right to engage in legally-protected activity.
Import for Employers
The Board’s position on recording conversations is one of the areas in which controlling precedents have repeatedly shifted, particularly over the past five years. While current law does not preclude employers from having policies that generally prohibit recording of conversations in the workplace, and those policies can apply equally in one-party and two-party consent states, employers need to be mindful of the limits of those policies when the recorded conversations pertain to employees’ rights to organize and bargain collectively with regard to the terms and conditions of their employment.
As a practical matter, this means that managers should be counseled to assume that their communications are being recorded and to conduct themselves appropriately from that perspective. Even in two-party consents, there can be no presumption that an employee will provide advance notice before recording a conversation.
Employers that anticipate certain conversations will be recorded, or believe they have already been recorded, should seek legal advice as to the appropriateness of enforcing the no recording policy, given the context of events transpiring in the workplace (particularly any union organizing activity). At times, it may be appropriate for a manager to remind employees of the policy or expressly disclaim consent to a recording, particularly where the discussion pertains to confidential business matters. In other situations, that same reminder or disclaimer might be cited as having a chilling effect or outright interfering with an employee’s exercise of legally protected rights under federal labor law.
By Tracey I. Levy