Is that red light flashing?

September 18th, 2018 by Zoe Argento and Julia Arnold at Littler Mendelson

This blog was written by Zoe Argento and Julia Arnold at Littler Mendelson, which authors our Model Policies and Forms for Maine Employers. You can find the original post and their Insight News & Analysis (which is excellent) on their website.


Hit the Pause Button: The Implications of Recording in the Workplace

Zoe Argento and Julia Arnold at Littler Mendelson

Workplace recordings have made headlines in recent weeks.  For example, Omarosa Manigault-Newman publicly played a recording of a meeting with her then-boss, White House Chief of Staff John Kelly, to bolster her claim that he threatened her during the meeting. White House officials quickly fired back that the recording was a breach of protocol and possibly illegal.  Given the controversies in the news, employers might be wondering when recording is legal and what policies they can lawfully implement on recording in the workplace.

Although recordings can be useful to resolve disputed facts about a conversation, surreptitious recording in the workplace can create both legal and business risks for employers.  Both employers and employees may violate state and federal wiretap laws by recording without consent.  Even with consent, employers should hesitate before taping employees, because pervasive surveillance in the workplace can put workers on edge and damage their morale. Similarly, employee recording may discomfit employees and customers, and put the employer’s confidential information at risk. 

Some employers respond to these risks by outright prohibiting recording in the workplace.  Recording bans carry their own risks, however, particularly with respect to the National Labor Relations Act.  Thus, employers must be careful in how they address workplace recording and implement no-recording rules. Below is an overview of considerations for employers related to recording in the workplace.

Legal Risks to Recording – Wiretap Laws

            All-Party Consent Wiretap Laws

Depending on the state, secretly recording a conversation with a co-worker may violate state wiretap laws. Twelve states prohibit recording a conversation without the consent of all parties to the conversation.  In these states, for example, an employee could violate state wiretap law if she covertly taped her discussion with a co-worker. Moreover, the employer also could potentially be liable under state wiretap law for the employee’s recording. Under the doctrine of respondeat superior, an employee’s actions can be attributed to the employer if those actions are performed for the purpose of serving the employer and in the scope and course of employment. For example, the company could potentially be liable for a supervisor’s wiretapping if it directed the supervisor to do so.  

What if an employee records another employee, such as her supervisor, in violation of wiretap law? In that case, although the supervisor could sue the employee for recording, the employer could not. As a third party, the employer would lack standing to sue. The employer potentially could, however, fund the recorded individual’s lawsuit by paying the legal fees if that individual chose to sue.1

All-party consent statutes generally recognize an exception for recording an in-person conversation in which there is no expectation of privacy.  For example, Illinois prohibits the recording of a “private conversation” without the consent of all parties.  The applicable statute defines a private conversation as one in which one or more of the parties to the conversation “intend[s] the communication to be of a private nature under circumstances reasonably justifying that expectation.”2 In other words, one of the parties must have a reasonable expectation of privacy in the conversation.  Thus, if a conversation occurs in a common area and is audible to anyone that walks by, it might not be deemed a “private conversation” and recording the conversation without the consent of all involved may be permissible in an all-party consent state. 

Notably, employers should not assume that employees lack a reasonable expectation of privacy on company premises. To the contrary, employees likely have a reasonable expectation of privacy in some areas of the workplace, such as changing rooms or their offices.  In addition, workplace privacy claims are highly fact-specific and the outcome can be hard to predict. This can result in expensive litigation because disposing of such claims in a motion to dismiss and even summary judgment can be challenging. 

Employers should also be aware that all-party consent wiretap laws may reach beyond state borders if the subject communication is between individuals in different states.  In Kearney v. Solomon Smith Barney, Inc., the California Supreme Court held that California’s Wiretap Act and its all-party consent requirement applied to the surreptitious tape-recording of telephone calls between a Georgia stockbroker and his California clients even though the stockbroker’s actions were perfectly legal under Georgia’s one-consent wiretap statute (and the federal Wiretap Act).3 In reaching its decision, the court applied traditional conflict-of-laws theories. The court reasoned that California had the greater interest in having its dual-consent law applied, and Georgia’s privacy interests would also be upheld through application of the California statute. The Kearney case illustrates the importance of examining the pertinent state wiretap statutes prior to conducting any monitoring, particularly if the communications cross state lines.

Violating all-party consent wiretap laws can result in both criminal and civil liability.  As with many privacy-related claims, actual damages can be difficult to prove.  However, wiretap laws often address this challenge by allowing for statutory damages.  For example, a plaintiff who prevails under California’s wiretap law could win the greater of either $5,000 or three times the amount of actual damages.4 As a result, damages can mount quickly for a company that maintains a practice of recording employees in California without consent.

            One-Party Consent Wiretap Laws

The majority of state wiretap laws and the federal Wiretap Act allow recording with the consent of only oneparty to the recorded communication.  This does not mean, however, that employers or employees can record secretly in the workplace with impunity in these states.  For example, in one-party consent states, a supervisor could surreptitiously tape her conversation with an employee without violating wiretap laws. However, if the supervisor taped her subordinate’s phone calls with a co-worker, or installed an audio/video camera in her subordinate’s office, the supervisor would likely run afoul of state and federal wiretap laws because she would be recording conversations to which she is not a party without consent.  The same would apply if an employee secretly recorded discussions among other co-workers or customers.

Notably, statutory damages under the federal wiretap are particularly high. Prevailing plaintiffs can win the greater of a fine of $100/day of violation or $10,000 per violation.5

            Consent to Recording

Consent is one of the principal defenses to a claim under the federal Wiretap Act.  Prior notice is central to proving consent, and is also critical to a successful monitoring program. However, employers should be aware that wiretap laws’ consent exception is strictly construed against employers.  For example, in Smith v. Mike Devers & Mike Devers Insurance Agency, Inc., the employer claimed it had distributed a handbook that explained the employer’s use of telephone monitoring equipment.6 The employee, nonetheless, survived summary judgment by denying she had received the handbook and contending, therefore, that she was not on notice of the employer’s monitoring.7 The employer could not establish either express or implied consent because the employer did not present evidence of a signed handbook or policy acknowledgment. 

To bolster the strength of the consent defense, employers should ensure that they obtain informed authorization from employees by explaining in clear terms exactly what the monitoring will entail. In addition, to reduce the risk of an argument like that in Smith, the employer should make sure that all employees subject to monitoring provide signed consent.

Non-Wiretap Risks to Workplace Recording

            Employer Recording

Even if recording is legal, employers should carefully assess whether the benefits of recording outweigh the non-legal risks.  Employees may not be happy to learn that their employer has secretly recorded their conversations. The resulting sense of violation could damage employee morale and result in a loss of trust. Even recording employees with their consent may harm morale by creating an environment in which employees feel uncomfortable because they are under constant surveillance.  Employers should carefully weigh these non-legal considerations when determining whether or how to monitor their workforce.

            Employee Recording

The chief non-wiretap risk of allowing employees to record in the workplace is that they may put confidential business information at risk.  For example, employees may capture trade secrets, such as conversations about business strategies or videos of proprietary manufacturing processes. Even if the employee records the proprietary information without malicious intent, the information could be compromised if, for example, the smartphone containing the recording is lost or stolen. 

Employees may also violate customer privacy by recording in the workplace.  The risks of recording customers are particularly high in some settings, such as hospitals, where recording could violate the Health Insurance Portability and Accountability Act (HIPAA).  Finally, allowing employees to tape while on the job can create an environment in which employees feel that they cannot speak candidly and must watch their every word. 

Prohibiting Recording in the Workplace

Due to the risks of employee recording, many employers wish to prohibit employees from recording in the workplace altogether.  The National Labor Relations Board (NLRB), when controlled by appointees of President Obama, ruled that restrictions on employee recordings at work generally violated the National Labor Relations Act (NLRA). 

In December 2017, however, the NLRB, now controlled by appointees of President Trump, reversed the Obama-era ruling by holding in The Boeing Company, that bans on workplace recording are generally lawful.8  The NLRB reasoned that Boeing had very substantial legitimate interests in preventing recordings that outweighed the “small risk that the rules would interfere with peripheral NLRA-protected activity…”9  The Board found that because many of the interests asserted by Boeing are common in workplaces generally, similar no-recording policies will be treated as categorically lawful in the future.

However, considerable risks remain following The Boeing Co.  Employers may violate the NLRA in the way that they draft, promulgate and enforce no-recording rules.  The NLRB’s new approach on recording bans only applies to rules that have little overlap with Section 7 rights, such as Boeing’s, and are facially neutral. A rule that expressly prohibits activities that are protected by the NLRA, such as recordings of protected workplace protests, or preservation of evidence for use in complaining activities, likely will be treated as unlawful.  Likewise, the announcement or implementation of a no-recording rule that appears to be timed in response to labor organizing or other concerted activities also will be found to violate the NLRA.  Perhaps most importantly, the application of even a facially lawful no-recording rule like Boeing’s in a manner that restricts employees’ rights under the NLRA will be found unlawful.10 At minimum, policies should be drafted to prevent interference with protected rights, and in a manner that provides sufficient guidance to be easily administered and applied lawfully by supervisors.


While recording is legally permissible in the workplace with appropriate consent, employers should carefully consider if and how to allow such monitoring.  If a company decides to prohibit recording altogether, it should do so by developing a consistent policy that describes the company’s legitimate reasons for banning recording.  In addition, employers must be careful to draft, implement and administer the policy in a manner that does not interfere with employees’ rights under the NLRA.

© Littler Mendelson. All Rights Reserved.

LITTLER MENDELSON®, is a registered trademark of Littler Mendelson, P.C.

1 Some states have laws restricting the extent to which a third party may fund a lawsuit.

2 Ill. Comp. Stat. 5/14-1,-2. 

3 39 Cal. 4th 95 (2006); see also Kight v. CashCall, Inc., 200 Cal. App. 4th 1377, 1399 (2011); Cal. Penal Code § 632.

4 See Cal. Penal Code § 637.2(a).

5 See 18 U.S. Code § 2520.

6 2002 U.S. Dist. LEXIS 1125 (M.D. Ala. Jan. 17, 2002).

7 Id. at *11.

8 365 NLRB No. 154 (Dec. 14, 2017).

9 Office of the General Counsel, MEMORANDUM GC 18-04 June 6, 2018 p. 6.

10 Id. at p. 3.

Related posts

Thanks-giving isn't just about turkeys - include the good employees too

This blog was written by Bobbi Britton Tucker at Cozen O'Connor, which authors our Minnesota Human Resources Manual, New York Human Resources Manual, and Pennsylvania Human Resources Manual. You can find the original post and their HR Headaches blog (good stuff) on their website.   The Impo... more

Cursing, surfing, weapons, gadgets – illegal, inappropriate or OK?

It happens in almost every workplace almost every day: somebody swears or is on an iffy website or is carrying a knife (or worse) or is using their own (not secure) phone or computer to send off a quick business email or text. So what is illegal, what is inappropriate and what is just not that... more

Costumes, booze and the Great Pumpkin – beware the office Halloween party

This blog was written by Adam Gutmann at Cozen O'Connor, which authors our Minnesota Human Resources Manual, New York Human Resources Manual, and Pennsylvania Human Resources Manual. You can find the original post and their HR Headaches blog (good stuff) on their website. Halloween in the Work... more

TN – A drug-free workplace program is good

This blog was written by William S. Rutchow at Ogletree Deakins, author of our Model Policies and Forms for Tennessee Employers. Ogletree also authors our Massachusetts Human Resources Manual, Colorado Human Resources Manual, and Employee Benefits – An Employer's Guide. You can find the original ... more

The #1 office perk is . . . ?

Natural light Natty Light Spam Lite Lite-Brite Blinded by the Light Any answer except #1, Natural light, may not be correct. Have a good Friday. more

List 10 Up: Top tips for starting a workplace incident interview

PODCAST Workplace investigations can either stall out without any clear answer, or instead succeed and lead to a conclusion, depending on the effectiveness of the interviews. However, many people conducting interviews skip simple steps at the very outset that maximize their effectiveness.  ... more

Round up stew: sick leave, harassment, non-compete, etc.

This blog was written by Shennan Harris at Squire Patton Boggs. Shennan is a co-author of our Wages and Hours – An Employer's Guide. You can find the original blog post and their Employment Law Worldview on their website.   State Law Round-Up: New Sick Leave, Sexual Harassment Laws and Othe... more

Identifying trade secrets does not mean figuring out how to barter better

This blog was written by Emma Schuering and Eric Packel at Polsinelli. Polsinelli authors hrsimple resources in Missouri, Kansas and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.   Identifying trad... more

Milk Stork delivers for working mom's and their baby

If you are in the practice of sending employees on overnight business trips AND you employ new mothers AND you believe in treating your employees right we’ve got just the bird for you.  Milk Stork is the first breast milk shipping company to support nursing mothers who are on the road and need... more
HR Webinars
Making Your HR To-Do List & Checking it Twice for the New Year
December 13th, 2018 at 7:30am CST by Greg Grisham, David Jones, Courtney Leyes, Gabriel McGaha, Robert Ratton III, Martin Thompson, Jeff Weintraub

Terminations Got You Down? 5 Tips to Tighten Your Termination Tactics
December 17th, 2018 at 12:00pm CST by Brian T. Benkstein at Fredrikson & Byron

Unconscious bias - whether you realize it or not
December 18th, 2018 at 11:00am CST by Margaret A. Matejkovic, Esq. at Kastner Westman & Wilkins, LLC

HR Articles
MeToo, avoiding women, and the modified Mike Pence Rule
Carnac the Magnificent says – Politicussin
Non-competes for non-skilled – non-productive, non-legal, non-enforceable?
Discrimination CHARGE! – Step 3 Cause or no cause, because you gotta do something
Discrimination CHARGE! – Step 2 Go Kim Possible for the investigation phase
Discrimination CHARGE! – Step 1 Don't panic, ask questions
Depression – what can an employer do?
Employers beware - what you say can and will be used against you
Holiday stew – ingredients for a happy and non-litigious holiday
MO - The weed du jour - marijuana médicale
Biometrics in the workplace - not a measure of bios accumulated by an employee
Thanks-giving isn't just about turkeys - include the good employees too
The best "stay" to help you retain employees
Overtime, daylight savings time and circadian rhythyms
Controlling the political speech of buttons*
Cursing, surfing, weapons, gadgets – illegal, inappropriate or OK?
How to Ghostbuster a new hire or applicant
Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)
Costumes, booze and the Great Pumpkin – beware the office Halloween party
Disability – Dr. or employee approved?
401(k) plan + payroll provider = 401k good things
Disability/pregnancy practices – what not to practice
Bad hire! Bad, bad hire!
TN – A drug-free workplace program is good
Open enrollment – personalizing perks pays off
Unpaid intern – depends on who benefits
The #1 office perk is . . . ?
FMLA leave before being eligible for FMLA leave
IL – Required expense reimbursement for your employees, not Bill Self
Help hiring holiday help here
Are the new DOL opinion letters like noses?
Public disclosure of confidential information is easier than you think
Bad mix – accommodation request and firing
If religious accommodation and a flu shot both equal angst, is that the transitive or substitution property?
Workplace shootings – 20 can-dos to prevent them
No call/no show shows. No what about it.
List 10 Up: Top tips for starting a workplace incident interview
Mr. Freeze unveils National Security Freeze tagline: "They can't steal your identity if it's frozen"
If it's called a dress code, can I wear pants?
I've changed my name – to Optimus Prime
TN: Conceal and carry means post to prohibit or permit
I'll take "ADA in 5s?" please Alex
Swearing at work – 7 rules
Is that red light flashing?
Four-legged office mates and the pawternity policies they benefit
Notice: notices and forms for FMLA that were already expired now updated virtually unchanged
Don't feel ripped off when you get ripped off – get even
School-related parental leave does not mean you forge a note from your kid
NY: Draft model sexual harassment policy/training released
Discipline - Demote - Depart or Communicate - Counsel - Channel
ICE audits II – FAQs to make you wiser
Round up stew: sick leave, harassment, non-compete, etc.
Identifying trade secrets does not mean figuring out how to barter better
ICE audits have nothing to do with freezer police
Being at work full time is not an essential function of a job?
List 10 up: Positive employee relations training: reap the benefits of engagement
Employment agreements – what to do before you do
Background checks of the future are continuous
Treating service animal requests (always treat the animal)
Prepare for saying "No" – you need to decide how to refuse service
List 10 up: What's the deal with employee handbook rules?
I cannot tell a lie . . . you're fired for cutting down the cherry tree
Milk Stork delivers for working mom's and their baby
Job tasks and essential functions under the ADA
Who are you? Why are you here? Personality testing?
No, you can't sleep on the job
Technology driving the hiring process
Should you give your employees a little Slack – or do they have enough already?
"We need to talk" isn't any easier to say than to hear
Bet employers must make: call and raise your minimum wage
Zero tolerance for "zero tolerance" policies
Ralph Waldo Emerson as a productivity consultant
Is the employee "disabled" under the ADA?
The six step DOL audit polka
PTO on the house!
New rules for work rules
Dr. Strangelabor or: How I Learned to Stop Worrying and Love the Millennial
Did Bartleby the scrivener write his own job description?
"Treating" disgruntled or bad behaving employees
Hiring under the age of 18
DO NOT LICK THE BRAIN! and other obvious stuff
Helping your employees save for emergencies
Right to bare arms in the workplace
#MeToo quiz
Under standing desks
How to approach an employee showing signs of cognitive decline
Dress codes should not be encoded
Foul language *
Rorschach, Horshack and Abednego
Don't ask a woman the gender of her child, especially. . .
Guidelines for a valid no-solicitation/no-distribution policy
All aboard the Love Train for long-term onboarding!
Gender and workplace bathrooms
No FMLA for pet's death
Personal hygiene in the workplace
Yes Virginia, there is a St. Patrick's Day in Ireland
Master the modern method for managing March Madness
Drug testing in The Office
Background checks
"Thank you" and "I'm sorry" – meaningful, simple and impactful
Michael Corleone HR tip for the day
S'not flu or it is, doesn't matter
Be prepared for ICE raids
Looking for employees: an untapped source of talent
Calling Dr. Love(less)
Non-exempt employees – what counts as wages?
HR is not a happy accident
Do new hires have to be a culture club fit?
Remote workers and telecommuting
When former employees ask for references
Model written lock out/tag out program
Wrong table cat
They might be giants . . . transforming healthcare?
Conducting internal I-9 audits
The Nebraska Chamber has issued a W-2 challenge to state taxpayers
The impact of super bowl(ing)
12 steps to handling violence in the workplace
Workplace retaliation: don't give in to the Dark Side
Would you really want to work with a bunch of yous?
What is the ADA?
Monty Python should not write your job descriptions
FMLA definitions
Unemployed or wear a bra – are those the only choices?
What "government shutdown" means for employers
An intern by any other name
FMLA - "leave" as in "leave the employee alone"
 “M,” “F,” Or “X”? Nonbinary Gender Designations in the Workplace
Sexual harassment – can't find it – what now?
Probationary periods
Employee contracts
How to treat fringe benefits for employees
Attendance policies
Different repeal
Temporary and leased employees
Birthdays in the workplace
Needy employees
Holiday parties - acknowledge, avoid, assume (nothing)
Dress codes: who, what, wear
Punch clock
Nepotism: favoring relatives and friends in the workplace
Year-end performance reviews
Hiring interviews
The Form I-9 has changed… Again!
Service dogs at work
Bring your own gun
Social media
Year-end or holiday incentives
Arizona sick day policy
Paternity leave
HRsimple spotlight - Fiona Ong
Permissible post-accident drug testing
Paid family leave: a growing trend
Politics in the workplace: how to remain legally compliant during election season
Termination Series: Communicating the reason for discharge
It’s only a matter of overtime
Interview with attorneys at Kastner Westman & Wilkins
Valentine's Day heartaches around the office
Safety and health tips
Wearable technology
Favorite HR sites
Back to school time is here!
Vacation policies and time off
Interview with author J. Hagood Tighe
Non-compete agreements
Workplace romance
Bullying in the workplace
Employment references
Telecommuting or remote (control) workers
Social media and employment
Performance evaluations
Interview with attorneys at Wilson Worley PC
Interview with attorneys at Knudsen Law Firm
Interview with Kathy Speaker MacNett
Firing, a job to do right the first time
Job advertisement do’s and don’ts
Employee handbooks – getting a handle on your policies
Technology in the workplace
Interview questions: do's and don'ts
Employee personnel files