Can Employees (Audio) Record Others in the Office?

 

I had an interesting situation in the office several years ago. An employee was being reprimanded and whipped out their phone to record the conversation. Are things like that allowed?

Clarification

I am talking about audio recordings today, not video. Those laws can sometimes overlap but they also have significant differences. So please assume that this discussion is exclusively about audio recordings.

Texas Law

I'm going to focus on Texas law because that is where I am located. But here is a great rundown of all 50 states' laws concerning audio recordings. Here are the relevant Texas laws (Title 4 of the Penal Code & Chapter 18 of the Criminal Code).

Texas is considered to be a "one party consent" state. That means that as long as a participant in the conversation is the one doing the recording, they are largely in the clear. There are exceptions, of course.

There is also an important point about a reasonable expectation of privacy. In public places, there is typically no reasonable expectation of privacy. But that is not unlimited. Recordings in relatively private spaces - such as restrooms - is not fair game. A more questionable area is an enclosed phone booth. Is the enclosure for privacy or hearing? Or both?

Recording of Employee Discipline

So we return to the situation detailed above. In the case of an employee recording a reprimand, the general rule is that doing so is allowed. However, there are several ways to negate the general rule. In the situation above, the person giving the reprimand declined to be recorded. The other person refusing to be recorded forbids recording, even if one party consents.

But let's change the facts a little. What if the employee had simply kept their phone in their pocket to record what was said. Would that be okay?

As always, it depends. First, a participant in the conversation consented. So far so good. The next consideration is whether the workplace has a reasonable expectation of privacy. If it's a company doing business in public - and almost every company is considered to do business in public - then those facts may satisfy that prong of the analysis. But what if the company has a "no audio recording" policy? Then a reasonable expectation of privacy is likely restored. Could someone be prosecuted criminally for recording anyway? Sure. But that's unlikely. However, the act of recording when doing so is expressly forbidden by policy is a reason to fire someone for cause. In other words, unemployment may not be available for a termination based on those reasons.

Discussion

In general, it's not a bad idea to record certain interactions. Recording terminations, for example, is not a bad idea. However, when I have terminated someone - particularly if the situation seemed like it might be ripe for misunderstand or trouble - I put the recording device on the table in front of everyone and I explicitly state that this meeting is being recorded. I then offer to send the person the recording at the conclusion of the meeting. I then go through the termination and explain the separation agreement, highlighting the need for the employee to get his/her own legal advice. I have found this practice to be helpful for documentation purposes.

Policies around audio recordings in the office are helpful. It's not confusing to say that no one is allowed to record in the office without the other participants' explicit permission. You can also set forth a policy that employee discipline, including termination, may be recorded. Just give everyone the rules about the office in which they work.

Best Practices

I mentioned a few above. For the sake of clarity, best practices include:

• Promulgate written policies forbidding audio recording except for certain situations. These situations may include employee discipline and/or circumstances in which all participants consent to being recorded. Such policies may introduce a reasonable expectation of privacy in non-consent circumstances. I have written these policies before, and can help you craft them to fit your needs.
• When you (the employer) record meetings, place the recording device in plain view of everyone and state that the meeting is being recorded on the actual recording itself.
• List unauthorized recording (as defined by company policy) as a terminable offense.

How 888 Can Help

If you think that someone may be surreptitiously recording others in the office, we can perform a sweep for electronic devices.

There have been people who have recorded in restrooms, for example, with hidden cameras. Those folks need to be prosecuted. We'd be happy to help, but we are likely to request that you call the police for most of those situations. If recording devices are in conference rooms, we'll be glad to help you ferret out who the offender is!

We can also help you on the front end, setting up defensible policies and procedures. As they say, an ounce of prevention is worth a pound of cure. 

 

 

This is a cross-post with LinkedIn.