The brief answers is “it depends”. The legality of no-recording policies is a hot issue with the National Labor Relations Board (NLRB), State Laws and the Courts. While there are no clear-cut rules or guidelines for drafting a no-recording policy that would withstand scrutiny from the NLRB or courts, you should take certain considerations into account:
Here are the considerations for drafting workplace recording policies:
- A policy that prohibits all employee recording will likely violate Section 7. (Recall that the recording of activities that are concerted and involve terms and conditions of employment are likely protected by Section 7.)
- The policy shouldn’t prohibit all workplace recordings outright unless you have an overriding legitimate interest that is as strong as a hospital’s interest in protecting patients’ health information.
- The policy should identify and be related to your overriding legitimate interest. Having a legal obligation to protect certain information likely increases the strength of your interest. Note that protecting confidential information concerning your customers, vendors, suppliers, or trade secrets likely wouldn’t justify a broad no-recording policy.
- The policy shouldn’t prohibit recording activities that are protected by Section 7—even during working time.
- The policy shouldn’t require an employee to obtain your consent prior to making a recording.
- The policy should clearly convey to employees that it isn’t intended to interfere with, infringe on, or restrain employee rights protected by Section 7.
- The policy should define the time, area, and/or activities that your overriding legitimate interest prohibits employees from recording. For example, you might limit the policy to prohibiting employees from engaging in recording during working time, while they’re in work areas, or while they’re conducting employer business. Although defining such limitations may assist you in defending your narrowly tailored no-recording policy, the NLRB or a court may still find that your policy violates Section 7 since photography and recordings, often covert and made during working time and in work areas, have been used to vindicate Section 7 rights.
- Texas is a one-party consent state, which means a person may record a conversation without telling the other participants as long as she is one of the parties to the conversation. Likewise, federal law permits a person to record a communication when she is a participant or when one of the parties to the communication has given prior consent. A no-recording policy likely wouldn’t benefit, in terms of enforceability, from reference to those laws. However, if you operate in a state that prohibits non-consensual recordings or in a two-party/all-party consent state, you should identify the relevant state law in your policy.
Re: Slade, S & Oberrect, G. (2/2/2018). HR Daily. Can You Stop Someone from Secretly Recording Conversations at Work?