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 in which you work, your employer may be able to retaliate and fire you for doing so.
Harris vs. Atkinson Cotton Warehouse (Case 2:14-cv-02603)
Take for example the case of Harris vs. Atkinson Cotton Warehouse. Mr. 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.
Mr. 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 Mr. Harris for using the ‘white’ drinking fountain and threatening to hang him for doing so. Mr. Harris repeatedly complained to management, but no action was ever taken.
Mr. 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 is defined as a negative 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 reasonably believes to be unlawful.
Because, according to the EEOC, Mr. Harris participated in protected activity by standing up for their rights under state and federal anti-discrimination and harassment laws, their 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?