Can Workers Record Video or Audio in the Workplace?

Published Sept. 24, 2014

With the advent of smartphones, employees now have the means to record conversations and workplace environments. But can employers legally restrict workers from recording on the job?

Three Things Affecting Legality of Workplace Recording

An employee may have legal grounds for recording in the workplace depending on:

  • Geography: In most states, if you are a participant in the conversation, you can record it – it is not legal to record the conversations of people around you. In California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington, you will need to have the consent of everyone participating in the conversation in order to record it. (Illinois’ Supreme Court recently struck down the Illinois Eavesdropping law for being too broad.)
  • Workplace privacy: Because there is no “expectation of privacy” in public – such as a lobby, stairwell, conference room or office with the door open, recording conversations in a public area is almost always legal.
  • Objective: If you are recording a conversation to document illegal discrimination or harassment, the courts are split on the legality of this issue, yet the Equal Employment Opportunity Commission (EEOC) considers this “protected activity.” Depending on the state where you work, your employer may be able to retaliate and fire you for doing so.

Harris vs. Atkinson Cotton Warehouse 

Take for example the case of Harris vs. Atkinson Cotton Warehouse (Case 2:14-cv-02603). Harris, an African American, worked at a cotton gin in Memphis, Tennessee where he and his African American coworkers were subjected to race discrimination that was so overt and shocking they didn’t think anyone would believe them.

Harris used his cell phone to record his supervisor making racist comments. (Note: In Tennessee, recording audio without consent of all participants is legal.) One recording caught the supervisor chastising Harris for using the so-called “white” drinking fountain and threatening to hang him for doing so. Harris repeatedly complained to management, but no action was ever taken.

Harris, along with two of his colleagues, filed a Charge of Racial Discrimination against Atkinson Cotton with the EEOC. Soon after, all three men were terminated.

Workplace Retaliation

Workplace retaliation is defined as a negative or adverse action (termination, demotion, refusal or failure to promote, negative performance evaluation, and harassment) taken by an employer against an employee who alleges or reports activities that he or she reasonably believes to be unlawful.

Because, according to the EEOC, Harris participated in protected activity by standing up for rights under state and federal anti-discrimination and harassment laws, the termination shows retaliation on behalf of Atkinson Cotton.

The EEOC is now mediating a financial settlement with the cotton warehouse’s owner.

Read about the flip-side of surveillance at work: Can employers record employees in the workplace?

Keep Informed
with GovDocs Labor Law News

This Labor Law News Blog is intended for market awareness only, it is not to be used for legal advice or counsel.

GovDocs Update Program

Who is GovDocs?

GovDocs simplifies the complexity of employment law management (ELM) for large, multilocation employers across all industries. We offer a suite of innovative compliance products, including labor law postings, data software applications and other program management tools, to ease the day-to-day responsibilities of human resources, compensation, legal and finance teams.

Have less than 30 locations? 

The GovDocs Poster Store simplifies the complexity of posting compliance for employers with less than 30 locations across all industries. We offer a variety of posting products to meet your labor law compliance needs, including federal and state posters; county and city poster packages; and other HR posters. Plus, when you purchase posters with GovDocs Update Service, you ensure your locations automatically receive updated posters whenever changes occur.