What Do Colleges and Universities Need to Know About Workplace Recording Laws?

By    //    Volume 25,  Number 4   //    July/August 2017

While many higher education institutions craft a recording policy for classroom settings or general meetings, how many consider the impact of recording devices in the workplace? Trusteeship asked Lindenwood University’s Ryan V. Guffey, associate vice president for global education, and Grant J. Shostak, vice president and legal counsel, to examine the legal ramifications.

What should an administrator do if an employee attempts to record a private conversation or a meeting? What are the legal boundaries that define this situation?

Many employers believe it is their right to prohibit employees from recording workplace meetings and conversations. Such, however, is not entirely the case, as recently demonstrated in Whole Foods Mkt. Grp., Inc. v. NLRB. In the case, Whole Foods challenged a decision of the National Labor Relations Board (NLRB), finding that its recording policies violated the law. In a hearing before the NLRB, Whole Foods employees challenged certain company policies barring them from recording all conversations and meetings, unless management approval was obtained. Whole Foods contended that the policies were in place to promote communication and halt any chilling effect recording may have.

The NLRB found that the prohibitions violated Section 7 of the National Labor Relations Act because recordings are protected if employees are acting for their common good and protection, such as picketing, documenting unsafe working conditions, or preserving evidence for legal action.

Prohibitions on recording may stand, however, when there is an overriding employer interest in preventing the recordings. For example, in an earlier case, the NLRB upheld a hospital’s ban on recording images to protect patient privacy. In addition, while nonconsensual recording is illegal in some states, the NLRB found that such laws would not save Whole Foods’ outright prohibitions on employee recording. The NLRB determined that the blanket prohibitions on employee recording were overly broad because they prohibited recording in states where it was legal to do so.

The Second Circuit Court of Appeals in its summary order found that the NLRB’s decision was supported by substantial evidence and was in accordance with law. While affirming the NLRB’s decision, the Second Circuit noted that Whole Foods could draft a more narrowly tailored policy that would not conflict with the law.

What should an institution take away from the Whole Foods case?

1. Universities should review employee recording policies to ensure they are tailored to protecting important business interests, such as confidential information. Likewise, to ward off confusion, the policies should set out the reasoning (e.g., confidentiality of student information) for prohibiting recording.

2. Universities should recognize that Section 7 of the National Labor Relations Act allows employees to record conversations and take photographs when they are acting together for their mutual aid and protection and there is no overriding business concern against such recording.

3. Institutions should review any applicable state recording laws and make sure their recording policies are in compliance. Some states require the consent of both parties to a conversation before recording. Our university is located in Missouri, which is a one-party consent state. Assuming an employer cannot demonstrate an overriding business concern for preventing the recording, mutual consent is not required.

4. It is always a good idea for administrators to consult with counsel before disciplining an employee for recording a workplace conversation or meeting, or entering a situation where it is known that an employee wishes to record a conversation.

5. Administrators should act as if they are being recorded. That way, there is no need to be concerned about whether someone is recording a conversation.

Do you have other tips for administrators in this situation?

If this issue arises, administrators should stay calm. Just because an employee makes a recording does not necessarily mean a court will accept it as evidence in any subsequent litigation or proceedings. The person who wants to use the recording must lay a proper foundation for its admission and convince the court that the recording has not been altered. As long as administrators conduct operations with integrity and within the scope of the law, they can avert most workplace recording crises.