A recorded conversation can provide clear answers when the facts of a conversation are disputed. They are incredibly useful in countless situations from litigation to day-to -day business dealings and employee disputes. However, recording conversations in the workplace also creates employer risk if done improperly. To avoid violation of New York and federal wiretap laws, an employer must have proper consent before recording a conversation.
Generally, in New York, any conversation may be recorded if at least one party to the conversation consents. This isn’t a free pass for employers to record all conversations, however. While it’s generally lawful for a supervisor to record her conversation with a subordinate, it’s not legal for the supervisor to secretly record things when she’s not a party to the conversation.
So if employers want to record workplace conversations more broadly, they almost always should place their employees on notice. As a best practice, then, employers who record all office communications, for example, should notify employees of their recording policy in writing and obtain a signed acknowledgement that employees both received and understood the policy.
Note that other obligations may arise from recording communications with third parties, but we’re just talking employee relations today. For instance, some other states have stricter rules on recording conversations. If there’s a chance that the policy will impact communications that cross state lines, employers must ensure that the recording complies with the wiretap laws of the other state as well.
In short, with proper consent, conversations legally can be recorded in New York workplaces, and these conversations can be used to the benefit of either the employer or the employee.
But just because an employer can, should it record conversations? We already know that they can be used both for and against the employer. Another important consideration is the non-legal risks of recording conversations, such as creating new records of confidential information that needs to be securely protected or the impact on employee morale. Depending on the circumstances, even if recording is permitted, they may not be worth the business risk.
Now, suppose that an employer decides it wants nothing to do with workplace recordings at all or is especially concerned about employees recording meetings and conversations. Can the employer ban recordings in the workplace altogether? The latest guidance from the National Labor Relations Board suggests that it can. But employers must be careful to not implement a no-recording policy more narrowly, such as only recording conversations among union employees, as that could be construed to limit employee rights under the National Labor Relations Act.
Recording conversations in the workplace can be tricky business for employers. If you have questions about whether your policy complies, contact us. The attorneys at The Coppola Firm are happy to assist.