• Multiple laws are in effect that regulate employee privacy, and employers would be prudent to know and understand them.
• The NRLA secures the rights of workers to conduct discussions on employment issues, and recordings and photographs are allowed.

Privacy in the workplace is often a fine line between an employee’s rights to privacy and an employer’s need for security. In some cases, laws protect an employee’s right to privacy. In other cases, the situation may end up being determined in court. Sometimes employers have to balance the needs of the organization and the rights of employees.

Unfortunately, if a situation goes to court, it could cost an employer hundreds of thousands of dollars in damages. The number of cases that involve employee privacy is growing. Employers may benefit from understanding the laws that govern employee privacy and what they can do to protect themselves from litigation.

Laws and legislation

A number of federal laws govern an individual’s privacy:

• The Employee Polygraph Protection Act prohibits the use of lie detectors in employment decisions, except for narrow applications.
• The Electronic Communication Privacy Act is intended to provide individuals with some privacy protection in their electronic communications.
• The Stored Communications Act prohibits the intentional unauthorized access of communications that are stored with an internet service provider.
• The Americans with Disabilities Act requires employee and applicant medical information to be kept confidential.
• The Health Insurance Portability and Accountability Act restricts the use and disclosure of an individual’s private health information without authorization.

These are federal laws that may apply to employment situations. Employers should keep in mind that many states have implemented privacy laws that go beyond the requirements of federal laws. There may even be local laws that apply.

Recording conversations in the workplace

Sometimes, it makes business sense to record certain communications in the workplace. For instance, many companies record customer service calls between employees and customers for quality purposes. From time to time, employers may want to record conversations between employees, perhaps between an employee and a human resources (HR) representative. Employees themselves may even want to record conversations such as these.

The parameters for recording vary by state. Some states are one-party consent states with regard to audio recording, which means that only one party to the conversation needs to give consent to a recording, and that could be the person recording the conversation (assuming that person is a party to the conversation). In those states, employees could potentially record a conversation in the workplace without informing the other parties to the conversation of the recording. Note that an employee could only record a conversation to which the employee had access.

All states except for 12 are one-party consent states. These 12 are two-party (or all-party) consent states:

• California
• Connecticut
• Florida
• Illinois
• Maryland
• Massachusetts
• Michigan
• Montana
• New Hampshire
• Nevada
• Pennsylvania
• Washington

In those 12 states, all parties to the recording must give consent for it to be legal. In one-party states, an employee or an employer could legally make a secret recording.

Recording policies

Historically, even when a recording could be legally made, employers weren’t required to allow them. An employer could typically have (and enforce) a no-recording policy in the workplace.

However, in February 2016, in Whole Foods Market Group, Inc., the National Labor Relations Board (NLRB) ruled that the making of certain recordings (audio, video, and photography) can be protected activity under the National Labor Relations Act (NLRA). In June 2017, the Second Circuit Court of Appeals agreed with the board that the employer’s overly broad rules violated the NLRA.

The NLRA protects employees’ rights to discuss terms and conditions of employment with one another to determine whether they might benefit from the services of a labor union. According to the NLRB, recordings and photographs can be a protected part of such a discussion. For instance, if an employee recorded inconsistent or unlawful management behavior to encourage other employees to take action, such a recording may be protected activity.

Likewise, if employees are documenting unsafe working conditions, that photo or recording would likely be protected. Essentially, if a recording in the workplace is part of one or more employees’ efforts to discuss or provoke action regarding terms and conditions of employment, it would probably be considered protected activity under the NLRA.

Employers should make sure the language used in their recording policies can’t be construed to limit employees’ rights under the NLRA. Policies should be specific and detailed, with examples whenever possible. A policy might remind employees that recordings and photography are prohibited where these activities could compromise trade secrets or customers’ personally identifying information, for example.

GPS tracking

In addition to video recording, some employers track employees’ physical movements using global positioning system (GPS) technology. Employers may want to track employees to ensure they are working where and when they say they are.

With GPS tracking, employers must turn to case law for guidance. Generally speaking, courts have held that monitoring employees’ positions while they are working is reasonable. As with video recording, it greatly helps an employer’s case to establish a business justification for tracking. Employers also help themselves by making sure employees know they are being tracked; this ensures they don’t have an expectation of privacy during working hours.

Some employers want to track employees’ positions outside of work hours. However, in such a case, a legitimate business reason for tracking the employee would be much more difficult to justify. While there isn’t much case law yet in this area involving employers, a 2012 case before the U.S. Supreme Court provides some guidance. In this case, a drug trafficking conviction was overturned after law enforcement officials used GPS tracking to monitor the defendant’s movements for a lengthy period of time. The court indicated such tracking violated the individual’s right to privacy. While this involved a private citizen, not an employee, it gives employers an idea about how monitoring an individual’s personal time might be viewed.