ALJ Holds Employers Can Ban "Gotcha" Audio Recordings From The Workplace

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.  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 thirteen 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. Continue reading this entry at Littler's Workplace Privacy Counsel.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.