While both the courts and the National Labor Relations Board (“NRLB”) have as recently as 2014 ruled against employer bans on workplace recording, the legality of video or audio recording by employees is far from clear cut. It’s a good idea for employers and employees to research the laws before recording – or instituting policies for recording – in the workplace.
Four 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 participate in a conversation, you can record it. However, it may not be legal to record the conversations of people around you. In California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, you need the consent of everyone participating in the conversation to record it.
- 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.
- Concerted Activity: Section 7 of the National Labor Relations Act (“NLRA”) protects workers engaging in group activity to improve employment conditions. Collective bargaining and labor organizing are examples of such “concerted activity.” In recent decisions, the NLRB has upheld the rights of workers over recording bans, noting such blanket bans violate Section 7 rights.
Harris vs. Atkinson Cotton Warehouse (Case 2:14-cv-02603)
Take for example the case of Harris vs. Atkinson Cotton Warehouse. Untonio Harris, an African-American, worked at a cotton gin in Memphis, TN, where he and his African-American coworkers were subjected to racial discrimination 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 “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 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.
According to the EEOC, because 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.
Harris and his fellow plaintiffs a financial settlement with the cotton warehouse’s owner in 2015.
Read about the flip-side of surveillance at work: Can employers record employees in the workplace?