Recording Conversations: Employment Law and Legal Ethics

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Employee recording conversation terminate termination Alabama employment law
Employees can use various electronic devices to secretly record conversations in the workplace.

I frequently get calls from clients who suspect that their employees are recording conversations in the workplace.  Those clients almost always ask whether it is “legal” for employees to secretly record conversations.  To that question, I always give the same lawyerly answer:  “It depends.”

Generally, it is not a crime in Alabama for a person who is a party to a conversation to secretly record that conversation.  It is generally illegal for a non-party to record a conversation.  Thus, in general terms, an employee can secretly record any conversation that they take part in.  But, the employee cannot “bug” an office and secretly listen to discussions between other people.

The bigger question is:  What can be done about employees who are making secret recordings?  For the risk-adverse employer, the answer is:  very little.  An employer might attempt to adopt a “no recording” policy.  But, the National Labor Relations Board has found that such policies restrict the ability of employees to engage in protected, concerted activity for formation of unions.  Here is a good discussion from the Society for Human Resource Management on the NLRB’s decision:  Employers Can’t Prohibit Recording  So, if an employer prohibits recordings in the workplace, it risks violating the National Labor Relations Act.

The issue of secret recordings also became an issue in a recent case before United States District Court Judge David Proctor:  Smith v. Haynes & Haynes, No. 2;14-cv-01334-RDP, 2017 WL 3613045 (N.D. Ala. Aug. 22, 2017).  In that case, the issue did not involve secret recording of employees.  Instead, the employee’s lawyer secretly recorded the employer’s lawyer as they discussed the merits of the case.  Judge Proctor clearly was not happy:  “Surreptitious taping of anyone in a case before the undersigned by an officer of this court is not appropriate. … [T]he court considers it a violation of the ethical duties of counsel admitted to this court.”  In short, at least in Judge Proctor’s court, lawyers will be held to a higher standard than employees in the workplace.

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