Wednesday, November 6, 2013

Security Director Alert - Draft a 'No Recording' Policy for Your Company

Here's why... 

by Philip L. Gordon, Littler Mendelson P.C.
With audio recording applications (“apps”) often standard issue on ubiquitous smart phones, employees are now armed with a relatively inconspicuous way to capture their supervisor’s every gaffe.  

Signs available here.
In September, a $280,000 jury verdict in favor of an employee on race and sex discrimination claims demonstrated just how damaging an audio recording can be in employment litigation. In that case, the plaintiff, who is African American, caught her supervisor, who is Hispanic, using the “N” word on tape, and the judge admitted the recording into evidence. Putting aside the risk of employees collecting damaging evidence for anticipated litigation, the ever-present specter of audio recording can undermine the type of corporate culture that so many employers are trying to encourage nowadays, one that thrives on collaboration and candid discussion among colleagues.

In 13 states — California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington — anti-wiretap laws generally prohibit the recording of face-to-face communications without the consent of all parties to the communication. However, in the remaining 37 states and under federal law, audio recordings, whether surreptitious or not, are legal so long as the person making the recording participates in the recorded conversation. In these states, secret recordings by one of the participants not only are legal, but the former Acting General Counsel (“Acting GC”) of the National Labor Relations Board (NLRB) recently took the position that workers have a legally protected right to record their co-workers and managers. In a decision published on October 30, 2013, an administrative law judge (ALJ) flatly rejected the Acting GC’s position and upheld the employer’s general prohibition on all audio recordings in the workplace without prior management approval.

The employer in that case, Whole Food Markets, promulgated the prohibition to thwart the “chilling effect” of workplace audio recording. More specifically, Whole Foods’ policy explains that concern about audio recording “can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.” Although not stated in the policy, Whole Foods’ head of human resources testified that the policy applied to all employees, whether management or non-management; to all devices that captured voice; and in all areas of the store, including the store’s parking lot and entrance area; but only during working time. (more)

Ask Philip Gordon about drafting a "no recording in the workplace" policy for you. 
Be sure to add video, too.

Security Directors: FREE Security White Paper - "Surreptitious Workplace Recording ...and what you can do about it."