How Employers Should Handle Audio and Video Recording in the Workplace
Almost every employee carries at least one mobile device that can record audio and video in the workplace. Employers may also place video cameras in their facilities or record conversations through their phone systems. These technologies make audio and video recording simple, but the laws and regulations related to workplace recordings can be complex.
Recording audio and video in the workplace is legal, with some caveats. Employers can avoid any potential legal pitfalls by establishing clear policies and procedures and following best practices.
Can Employers Ban Workplace Recording?
Employers have many legitimate reasons for banning unapproved recordings in the workplace. Video in particular can create security risks by giving criminals an inside look at facilities and operations. Corporate espionage is largely perpetrated by insiders, who may use video to expose intellectual property. Federal contractors that handle sensitive information have a legal obligation to protect government secrets.
Workplace recording by employees can also put employers at risk. Employees could violate the privacy of coworkers or customers. In a health care setting, sensitive information about patients could be compromised. Audio and video recording could also be used for discrimination or harassment.
Until 2017, the National Labor Relations Board categorically prohibited any policies that banned video recording in the workplace. The Board’s 2004 decision in Lutheran Heritage Village-Livonia set a standard stating that virtually any workplace policies violated Section 8(a)(1) of the National Labor Relations Act. Section 8(a)(1) prohibits employers from interfering with employee efforts to unionize or bargain collectively. Under the Lutheran Heritage standard, a workplace rule was invalid if “a reasonable employee could conclude” that the rule proscribed such activity.
However, the Board overruled the Lutheran Heritage standard in a 2017 decision involving Boeing, which had implemented a policy banning workplace recording. The Board upheld Boeing’s policy and established a more flexible standard for evaluating such policies.
Tips for Establishing Workplace Policies Prohibiting Recording
Be clear and unambiguous. Ensure that employees understand when and where audio and video recordings are prohibited. However, avoid overbroad language that could run afoul of the National Labor Relations Act (NLRA).
Educate employees about the potential risks. It is likely that they simply aren’t thinking about what or who is in the background when they record.
Be practical. In some situations, it may make more sense to prohibit the use of smart devices than to try to enforce a ban on using them to record.
Gain employee consent to search for and delete prohibited audio or video on their devices. Written consent is preferable.
Address other federal and state laws. For example, 11 states require that all parties consent to audio and video recordings. An employer could be held vicariously liable for violation of these laws if an employee makes a recording without gaining consent.
Enforce policies consistently. Disciplining some employees for recording and not others can create risks.
Can an Employer Record Audio and Video in the Workplace?
Employers also have valid reasons for implementing audio and video recording. Video surveillance can deter theft and fraud — a 2016 study found that employees are responsible for 90% of significant theft losses, costing companies trillions of dollars globally. In addition to money, inventory, equipment, and supplies, employees may steal intellectual property, trade secrets, and data. They may also steal time by doctoring time cards and failing to report breaks and absences.
Video can enhance employee safety by capturing the activities of visitors and coworkers. Audio and video recording can also be used to identify harassment and resolve workplace conflicts.
Employers can gain insight into efficiency and workplace productivity through audio and video recording. Employee interactions with customers can be captured through video and telephone systems, providing managers with tools to use for training, coaching, and rewarding exemplary behaviors. Video recordings can also help employers identify safety violations.
Generally, employers can record activity in open workspaces and monitor the use and movement of supplies, equipment, and vehicles. Problems arise when employers monitor places and activities that a reasonable person would consider private.
Clearly, cameras should not be installed in bathrooms or areas where employees change clothes. Federal wiretapping law prohibits employers from recording employees’ personal calls or accessing their voicemails without express permission. Recording in an area where employees engage in activity protected by the NLRA can also create legal liability.
Tips for Establishing Workplace Recording Policies
Provide employees with clear written notice that they are being recorded, and obtain written consent for audio recording. Some states require consent for video recording as well.
Document a legitimate business reason for recording and the specific areas and situations where recording will take place. Don’t make broad assumptions about whether employees have a reasonable expectation of privacy in a given situation. The analysis is fact specific.
Strictly limit the scope and duration of secret recording to catch criminal activity or employee misconduct. Obtain the advice of counsel and involve law enforcement if appropriate.
Establish a retention policy for audio and video recordings. Recordings are not useful for disciplinary actions or legal proceedings if they haven’t been preserved. Consider the statute of limitations for various claims when developing a uniform retention policy. Important recordings can also be separated and preserved indefinitely.
Remember to obtain written releases where necessary. This is important if video or images captured from video are to be used for training or publicity purposes.
Make sure the benefits outweigh the risks. Even if perfectly legal, audio and video recording can harm morale by making employees stressed and uncomfortable. Signage reminding employees of company policies regarding equipment usage, for example, may be as effective as video surveillance.
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