Surveillance in the Workplace

Q.  Can employers prevent employees from recording conversations in the workplace.

A.  Sometimes.

As technology continues to advance, so does the likelihood that everything you say and do is being recorded, even in the workplace. With most employees having access to smartphones and other similar devices, there has been an increase in the number of employees engaging in surreptitious surveillance as a means of trying to document alleged wrongdoing and to assert and prove legal claims.  These recordings are being used more frequently in discrimination litigation.  Employees who secretly record workplace conversations often regret it, because the recordings usually depict an employer attempting to be reasonable, and it makes the employee look sneaky and manipulative. However, employers often want to prevent these recordings from happening in the first place. Whether an employer can prevent employees from recording conversations in the workplace depends on federal and state wiretapping laws, and the interests the employer is attempting to protect in relation to employee rights.

Federal law permits the recording of conversations as long as one of the parties to the conversation consents. This means that, so long as the person doing the actual recording consents to the recording, such a recording is permissible.  However, whether more than one-party consent is required varies from state to state.  While most states only require one-party consent, 12 states, including Pennsylvania, require two-party consent.

Pennsylvania

Pennsylvania is a two-party consent state, meaning that it is illegal to intercept or record a conversation unless all parties to the conversation consent. Under Pennsylvania law, it is a felony to record a private conversation without obtaining the appropriate consent.  Thus, if an employee secretly records a private workplace conversation with his or her coworkers or employer, the employee may be subject to a civil lawsuit and criminal charges.

New Jersey

By contrast, in New Jersey, only one-party consent is required to record an in-person or telephone conversation. Thus, it is legal to record a workplace conversation as long as you are a party to the conversation.  However, if an employee records a conversation that he or she is not a part of (for example, if the conversation occurs between a coworker and a supervisor), the employee must obtain consent from at least one of the parties to avoid civil and/or criminal penalties.

“No-Recording” Policies

Employers who wish to prevent their employees from recording workplace conversations should distribute a “no-recording” policy. However, such policies must be drafted carefully to avoid running afoul of the National Labor Relations Act.  For example, no-recording policies that completely ban employees from recording any workplace activities are likely to be considered unlawful.  Employees, even in an non-union environment, are permitted (at least in one-party states) to record conversations or events regarding the terms and conditions of their employment. Such conduct could be considered to be lawful “concerted activity.”

On the other hand, employers are permitted to place properly-tailored limits on an employee’s ability to record workplace activities without violating Section 7 rights. Including a disclaimer in the policy that informs employees that the policy is not intended to interfere with their Section 7 rights is an effective way to reiterate the types of recordings that the employer is not barring.  Employers also should make sure that they are able to identify and articulate legitimate business reasons for prohibiting employees from recording during certain times and in certain places, such as protecting confidential or proprietary information.  Also, if an employer’s state law prohibits nonconsensual surreptitious recordings, it is recommended that the employer refer to the state law in their recording policy.

In addition, employers should be careful to follow these best practices:

  • When meeting with employees, employers should refrain from saying anything that they would not want recorded and make sure to comply with company policies and procedures.
  • Employers should always conduct themselves in a professional and fair manner, as if they were being recorded.
  • In situations where employers are aware that they are being recorded, they should make it clear whether they object or consent to the recording,
  • Consistently enforce the no-recording policy among both employees, supervisors and visitors.
  • Employers should not record discussions with their employers; however if an employer chooses to record a workplace conversation, he or she should inform all parties in advance, even in a single consent state.
  • If an employer feels that he or she is being recorded, the employer should ask the employee(s). Employers do not have to participate in a conversation that is being recorded and can refuse to have a discussion with anyone who insists on recording.
  • Before terminating, disciplining or pursuing criminal or civil charges against an employee for recording in the workplace, seek the advice of counsel.

Renee C. Manson

 

 

 

Prohibiting Politics in the Office

Q.  Recently, two employees almost came to blows arguing over the merits of a Trump versus Clinton presidency. Can our company prohibit employees from talking about politics in the workplace?

A.  The 2016 presidential election has created the most intense and divisive political environment in recent memory. What can a company do if the banter of cable news, talk radio, and polarizing political Facebook posts spills into the workplace?

Because the First Amendment only limits the government’s ability to limit speech, an employer’s ability to prohibit free speech in the workplace depends on whether the employer is a public or private entity. Generally speaking, public employees have the right to free speech if they are conveying a message as a private citizen and the subject matter of the speech is a matter of public concern. However, private employees generally have no First Amendment protections in the workplace.

In most states, if a non-unionized private employer wants to prohibit political discussions at work, they may do so. As a practical matter (and from an employee morale standpoint), an employer is best served by enforcing its existing non-solicitation , dress code, and general conduct rules prohibiting behaviors such as harassment and workplace disturbances. Although it would be legal in many states and municipalities, we do not recommend for employers to discipline an employee simply for expressing a political opinion or candidate preference. If an employee’s political speech interferes with production or is harassing to other employees, however, an employer certainly can impose discipline. Likewise, if an employee’s attention is focused more on Hillary Clinton or Donald Trump than  his or her work, a private employer can and should take action.

If an employer disciplines an employee related to the employee’s political speech, the employer must ensure that the employee in question is not actually speaking out about workplace conditions (such as expressing support for a particular candidate because she advocates an increase in the minimum wage) because such activity may be considered concerted activity protected by the National Labor Relations Act. In addition, it is important to differentiate between off-duty and on-duty conduct. In many states, such as New York and California, for example, it is unlawful to discipline an employee for engaging in political discourse outside of the office, such as participating in a political campaign.

If a company does impose discipline, the employer should administer the discipline consistently to avoid violating anti-discrimination laws. If a difficult situation arises, err on the side of caution and consult legal counsel.

The 2016 presidential election creates unique challenges, as the major candidates are of different sexes and statements have been made throughout the election season regarding protected classes, including sex, race, religion, national origin, and disability. A political discussion (whether it is in person or online) can quickly devolve into discriminatory or harassing comments. Even though a presidential candidate may make sweeping generalizations about Mexicans, Muslims, or women, such behavior is inappropriate (and could be the catalyst for a harassment or discrimination claim) in the workplace and should be addressed through a company’s non-discrimination policy. Likewise, an employee’s comment about a particular candidate that is based on that person’s gender or other protected characteristic is not appropriate for the workplace. Now is a good time to review and update your policy prohibiting discrimination and harassment.

No two workplaces are the same and every company will need to examine its own workforce dynamics to determine what type of political activity is and is not appropriate, whether employee/supervisor training is required, and whether policies need to be put in place to preempt potential problems.

-Lee Tankle