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Davis Brown Employment and Labor Law Blog

Employment Law Blog: Going Viral - Why You Need to Add a No-Recording Policy to Your Handbook - December 9, 2014

It's not just the Millennials who are obsessed with documenting every aspect of their lives. Everyone does it. Smart phones make it incredibly easy to snap pics, video, slo-mo, or time lapse every minute of our lives. This modern day smart phone effect extends further than just our personal lives. Employees have their phones on them at work, and pressing "record" is as easy as ever. Once recorded, posting to the Internet is a mere two clicks away. Keep this mind as you perform your annual review of the Employee Handbook--is there a prohibition against secret recording in the office? 


Employers can prohibit recording in the workplace by drafting a policy against surreptitious recording, i.e., secretly recording a co-worker, boss, or customer. You might think that law already does this. Not really. The state of Iowa follows the federal law, which allows recording when one person, who is openly involved in the conversation, gives consent. If the person recording is openly involved in the conversation (talking), then their consent is all that is needed. It is completely acceptable for them to record others speaking--even if they have not disclosed that they are recording. 


On the other hand, the law does not allow a person to place a recording device, and then leave it to record others while that person is not present. That action violates both federal and state law and is "mechanical eavesdropping." There are civil and criminal penalties to address mechanical eavesdroppers. 


Employers should draft a no-recording policy that addresses secret recording by employees participating in the conversation. The policy modifies the law's minimum protections. The policy should require employees wanting to record, to disclose their intention to anyone who will be recorded.  The participants can then decide if they want to continue, knowing they are being recorded. 


Keep in mind that federal law protects the right to organize in the workplace. Don’t create an overboard policy that goes further than you need to. To address this issue, the policy need only prohibit secret recordation. Such a policy combats current, disgruntled employees seeking to entrap admissions from managers or bosses for future leverage, commonly unemployment claims or wrongful termination/retaliation lawsuits. However, aside from mitigating future litigation, a policy of this type fosters trust in the workplace. There is trust between employees and customers that any recordation will be openly announced, and not later discovered when it's going viral.