Workplace Recordings in the Digital Age: Balancing Employee Rights and Employer Protections

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As employees increasingly use technology to record workplace discussions and settings, employers face legal and practical risks. This article highlights key considerations surrounding workplace recording, including when it may be permitted, where employers run into trouble, and steps to reduce risk while maintaining compliance.

Why it matters

Workplace recording raises significant legal and practical risks for employers, as federal and state consent laws, privacy expectations, confidentiality, and employee-relations concerns continue to evolve. Employers must navigate this complex landscape to protect their legitimate business interests while preserving employees' rights.

The details

Whether and when workplace conversations may be recorded is often informed by state recording and consent laws, which establish different requirements. In one-party consent jurisdictions, a conversation may be recorded if at least one participant consents. In two-party or all-party consent states, the consent of all parties is required. This patchwork presents a compliance challenge for multi-state employers. The National Labor Relations Act (NLRA) protects employees' rights to engage in concerted activity, but it does not confer a blanket right to record in the workplace. Employers may adopt policies that regulate audio or video recordings to protect confidential information, safeguard employee and client privacy, and prevent recordings from being taken out of context or misused.

• The National Labor Relations Board (NLRB) evaluates employer recording restrictions on a case-by-case basis.

What’s next

Employers should become familiar with applicable state laws, train their workforce, and establish clear, narrowly tailored policies addressing audio and/or video recording in the workplace, including in remote or virtual settings.