Many employers consider using audio and video recording in the workplace to help ensure security, prevent theft, and monitor employee activity. However, these forms of surveillance can implicate employee privacy rights — and it’s important for employers to proceed with caution in order to avoid running afoul of the law. Similarly, employers must also be mindful of employee rights when instituting a no-recording policy for employees to ensure they do not violate them.
The following blog post discusses the various legal considerations that employers should be aware of when it comes to audio and video recording in the workplace.
Can Employees Use Video Surveillance in the Workplace?
There are many reasons an employer might wish to use audio and video recording in the workplace. For example, retail stores, restaurants, hotels, and bars may implement cameras for security purposes, to prevent internal theft, and record any accidents or injuries that occur. Generally, employers are permitted to use these forms of surveillance in the workplace as long as they inform employees about it and there is a legitimate business purpose.
Although video surveillance is allowed for a broad scope of reasons, there are some situations where recording is not legally permitted under state and federal law. Specifically, under the federal Electronic Communications Privacy Act, recording is prohibited in restrooms, break rooms, employee lounges, or changing rooms. It is also limited in other areas where there is a reasonable expectation of privacy.
Are Employers Permitted to Institute a No-Recording Policy for Employees?
Employers may institute a no-recording policy for employees. But they must be mindful that any such policy does not violate an employee’s rights. If an employer decides to implement a policy prohibiting employees from recording or taking video in the workplace, it must be neutral on its face — and there must be a valid reason for the policy.
Reasons that may justify a no-recording policy in the workplace can include the following:
- Trade secret protection
- Customer privacy concerns
- Protecting confidential customer information
- Security concerns
An employer may warn employees about the consequences of violating a no-recording policy. However, they cannot prohibit an employee from recording if the purpose is to document activity that is protected by the National Labor Relations Act (NLRA) or another applicable statute. Protected activity under the NLRA covers a wide range of conduct, including discussing wages, benefits, the terms of employment, and union organizing. In other words, the justifications for a no-recording policy typically would not come into play at a termination meeting or to discuss the conditions of employment.
Legal Considerations for Audio and Video Recording in the Workplace
Establishing a policy regarding audio and video recording in the workplace that complies with the NLRA can be critical to safeguard employers from potential legal issues and protect employees. When implementing a workplace recording policy — or a no-recording policy for employees — employers must carefully consider both their own interests and the rights of employees. They must also ensure that any policy is compliant with the NLRA and any other applicable state and federal laws.
Employers should maintain a balance between their objectives and the interests of their employees by clearly communicating the recording policy to employees, supervisors, and human resources. Additionally, it’s vital for employers to offer training and resources to employees regarding the recording policy, advise employees of any changes, and monitor ongoing compliance. Although Oklahoma is a one-party consent state when it comes to recordings, employers should obtain informed consent from employees, articulate the purpose of the policy, and specify any exceptions. This ensures that all parties are conscious that they are being recorded — and can help to insulate an employer from potential liability.
Clearly stating the penalties for violating a no-recording policy can discourage unauthorized recordings and advance a respectful working environment. The disciplinary action that may be taken for violating a lawful recording policy may include verbal counseling, written reprimands, reassignment, or termination. All reported violations should be thoroughly investigated before the appropriate disciplinary action is determined. Since these actions can significantly affect employee morale, it is essential for employers to find a middle ground between policy enforcement and maintaining a positive working environment.
Contact an Experienced Oklahoma Employment Law Attorney
If you’re an employer who is considering implementing a recording or no-recording policy in the workplace, it’s imperative to ensure legal and regulatory compliance. A knowledgeable employment law attorney can work with you to develop a workplace recording policy that complies with the NLRA and protects your interests. With offices in Tulsa and Claremore, Titus Hillis Reynolds Love offers capable counsel to companies, business owners, and employers throughout Oklahoma for a wide range of employment matters at both the state and federal levels. Contact us online or call (918) 216-0892 to schedule a consultation and learn how we can help.
