I see it more and more every day: employees are recording their employers. Our trusted bestie and sidekick, the smartphone, along with other technological advances, have made recording workplace conversations easy. Such recordings can be used as powerful tools in litigation and have the ability to become public-relations nightmares.
Because of this, many clients are asking me whether they can implement broad policies prohibiting recording. The answer, of course, depends. Sweeping policies banning workplace recording may be subject to various challenges. Let’s discuss some specific concerns.
Certain States Allow Recordings
As a threshold matter, it is important to note 38 states allow recordings so long as one party consents to the recording. Conversely, 12 states require all parties to consent to a recording. Take a look at the nifty map below for details on your state.
While courts have not yet dealt with preemption strikes against these recording prohibition laws, there is a strong likelihood state laws disallowing recordings are preempted by federal laws for purposes of employment protection, such as engaging in protected activity.
Secret Recordings and Whistleblower Statutes
OSHA investigates violations of whistleblower provisions contained in a variety of statues aimed at protecting employees report violations of specific concerns, including safety, financial reform, health insurance reform, and securities laws.
Administrative review boards tasked with making final decisions on OSHA-related matters regularly find an employee recording made in good faith to gather evidence to support a whistleblower claim. In fact, the boards have found a broad range of employee conduct is allowed, such as taking photographs, making secret recordings, and performance of quality control and quality assurance functions.
Secret Recordings and Federal Nondiscrimination Laws
There is no bright-line rule regarding secret recordings and the discrimination claims. On one hand, some courts have held recordings for proposes of gathering evidence to support a workplace discrimination claim is a protected activity and should not result in employee termination. This approach, however, represents the minority view on workplace recordings as they relate to discrimination claims.
A clear majority of courts have held employers are able to lawfully terminate an employee who engages in secret recording so long as that recording violates an employee
Other courts look at the facts on a case-by-case basis. These courts tend to look at whether there were other ways to gather the same evidence that would not violate an employer’s policies.
Secret Recordings and the NLRB
In its memo issued June 6, 2018, the NLRB analyzed this issue and ultimately determined no-recording rules as lawful. The NLRB recognized such rules could have a chilling effect on recording protected concerted activities. Nevertheless, the NLRB recognized such policies would actually promote open discussion and the free exchange of ideas.
Accordingly, it looks like no recording policies may be legal and enforceable in certain circumstances.
So, Now What?
A carefully-drafted policy prohibiting secret recordings is an important first step in combatting this issue. Of course, the policy should keep in mind the conflicting views by various federal agencies and be tailored accordingly. Such policies should clarify recording is permitted to address certain grievances and areas of concern (such as whistleblower claims). The policy should also explicitly state it is not intended to chill employee rights under the NLRA.
My grandmother always said if you assume you’re always being watched, you will always do the right thing. While this caused me some nightmares early on, the point is applicable. Supervisors, managers and HR professionals should always assume they are being recorded. This is a reality in today’s workplace.
Employers should also ensure their management and HR professionals are properly trained and understand the applicable laws so they don’t misspeak or create a legal issue.
Nancy Grimes, top legal recruitment specialist, knows most law firms and companies are striving to be more and more inclusive. However, there may still be some aspects of your hiring process that need tweaking in order to better serve, and attract, all qualified applicants. Additionally, addressing the below issues will secure employers against claims of discrimination.
ADA Requires Accommodation For Job Applicants, Too
by: Paul Cherner, of Klein, Paull, Holleb and Jacobs LTD
How inclusive is your workplace? Do you use online applications? If visually impaired applicants cannot access your online application, chances are that your workplace fails to include these individuals. You could be missing out on qualified applicants and making your business a target for claims.
Many employers have turned to online platforms to handle job applications. This has allowed easier filtering of applicants and their qualifications for these open positions and streamlined this administrative task. However, an online application process could be filtering out otherwise qualified applicants.
Employers who use online applications can be targets for litigation involving visually impaired applicants who are unable to apply for a job simply because they cannot read the content of an online application. Potential cases involving job applicants who have been denied the ability to seek employment because of a physical impairment can result in significant amounts being assessed in damages.
In the past few months, several cases involving online job applicants have been filed throughout the country against employers because the online job applications were allegedly inaccessible to individuals with visual impairments. A major gaming retailer, restaurant, grocery chain, and disposable cup manufacturer are among those sued, with three cases filed in August 2018. The plaintiffs in these three cases claimed that they attempted to gain access to the employer’s website to complete an application but were prevented from doing so because the website was incompatible with their screen reader software. The plaintiffs alleged that they sought a reasonable accommodation from the prospective employer by sending three (3) letters requesting assistance in completing the application, such as re-designing the website to allow screen reader access. The complaints allege that the plaintiffs’ efforts to seek an accommodation were rebuffed, whether by the employer’s complete failure to respond or other refusal to engage in the interactive process under the Americans with Disabilities Act. The current hotbed for the litigation appears to be California, but employers operating in other states should not consider themselves safe.
The EEOC’s Guidance on the Americans with Disabilities Act provides that “[a]n employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship).” Job applicants also look to similar rights provided under state anti-discrimination laws when seeking relief for allegedly inaccessible online applications. While online interfacing may render difficult the ability to assess an applicant’s initial qualifications, employers must think again about how they incorporate accessibility into their business models, including their hiring and application processes.