Are audio recordings legal in the workplace?

Mike Zinser

Question: Is it lawful to have a policy prohibiting recording in the workplace?

Answer: In a 2008 case (Argyropoulos v. City of Alton), the U.S. Court of Appeals upheld the discharge of an employee for surreptitious taping, with the Court stating:

"The statute does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination. As we have previously explained, inappropriate workplace activities are not legitimized by an earlier filed complaint of discrimination [Emphasis added]."

A more recent case in the U.S. Court of Appeals for the 6^th Circuit ruled that surreptitious workplace recordings are not protected activity under Title VII of the Civil Rights Act of 1964. An employee was fired because she violated a stated company policy against recording conversations in the workplace. The Court stated:

"Jones has not shown why she needed to violate the recording policy in order to oppose defendants' alleged discrimination. She might have taken notes of the conversations, obtained the same information through legal discovery, or simply asked her interlocutors for permission to record. Jones argues that her conduct was reasonable because the recordings were not illegal, did not breach confidential information, were not disruptive of business operations, and were not disseminated beyond the litigation. But none of this suggests that the recording policy was illegitimate or that it would have been futile to oppose the alleged discrimination in ways that did not violate the policy. In light of these considerations, we decline to hold that Jones' recordings were protected."

All employers should have a policy that addresses recording in the workplace. You never know when an employee is going to try to conceal a recording device during a termination or other type of meeting. I believe the following policy would pass legal muster:

[Company] respects the privacy of its employees and strives to protect all confidential company Information. [Company] strives to promote open and honest communication among employees, and endeavors to prevent the negative effect within the workplace that may result from recordings, surreptitious or otherwise.

[Company] prohibits the use of any video and audio recording devices during working time, unless specifically permitted by [Company]. [Company] prohibits the use of cell phones, smart phones, tablets, voice recorders or any other device that may capture visual images or audio during working time without [Company]'s specific permission.

More specifically, the use of cell phones, smart phones, tablets, or other recording of visual images or audio is prohibited in locker rooms, restrooms and any other area where members of the public or co-workers would expect a reasonable degree of privacy and in any area (including computers) in which sensitive or closely guarded corporate or business materials are used or housed.  

In the interest of providing a workplace of honesty, civility, and integrity, surreptitious recordings are always prohibited.

Any employees found in violation of this policy may be subject to disciplinary action, up to and including termination.

If you have any questions about this policy, please contact your supervisor or the Human Resources Department.

Note: Nothing in this SNPA Legal Hotline Q&A should be relied upon as legal advice in any particular matter.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.

SNPA's free Legal Hotline for members – (844) 804-2016 – is designed to assist newspapers with a broad range of legal issues. Hotline attorneys and CPAs will tackle questions about circulation, independent contractors, labor and employment law, taxes, finances and accounting, employment benefits, open records, libel and privacy, and other issues newspapers encounter.

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