These days, any employee can record video (with and without audio) of the workplace with his or her phone. And more and more employers are using video recordings to resolve employment relations investigations and disciplinary issues. To help employers with this growing use of video recordings in the workplace, below are six practical tips employers can use to develop compliant policies and procedures. The tips include three for employee recordings and three for employer recordings.
Video Recordings by Employees in the Workplace
- Uniform policies prohibiting video recording in the workplace are no longer facially invalid.
The National Labor Relations Board recently removed obstacles to employers implementing uniform policies that prohibit video recording in the workplace. The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). In the Boeing case, the Board considered the propriety of the following policy: “Use of camera-enabled devices to capture images or video is prohibited.” Boeing argued that the rule was necessary to maintain accreditation as a federal contractor to perform classified work, to prevent disclosure of proprietary information, to protect employee’s personally identifiable information, and to limit the risks of becoming a target of a terrorist attack. These justifications were sufficient, according to the Board, to support an employer-promulgated rule prohibiting pictures and video recordings. Since Boeing, the NLRB’s General Counsel has informally upheld a similar “no video” policy that prohibited recordings of images without prior approval.
The import of these developments is that “no video” policies will no longer be facially invalidated; rather, the Board will evaluate the justification for the policy and the potential impact on protected concerted activity. If the justification for the rule outweighs the risk to employees’ Section 7 rights, the rule will be upheld.
- State or federal law may make some video recordings that include audio illegal; therefore, video recording policies should address these situations.
The federal wiretapping law, and many similar state laws, put restrictions on recordings that include audio. Because most cell phone videos include audio, any “no video” policy should address audio recordings in order to minimize the possibility of vicarious liability for the employee’s actions.
In one-party consent jurisdictions (which includes the federal regime and most states, like New York and Texas), an employee breaks the law only if she records two other individuals conversing, without her own participation (since her participation implies her consent).
But eleven states are “all-party” consent jurisdictions (California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington). In those states, the employee needs effective consent from every party to the record conversations, which may be difficult to obtain and subsequently prove if challenged.
Employers may therefore wish to tailor any “no camera” policy to prohibit employees from making video recordings that include audio, without obtaining the necessary consent in advance.
- Employer policies should empower employers to delete video recordings taken in violation of their recording policies.
Because recordings may be taken with employer-issued or personal devices, it is important for employers to have employees consent to the employer deleting improperly taken video recordings on whatever device is used.
This consent can be incorporated into a handbook, an employer-issued-device policy, or a bring-your-own-device/personal-device policy. Written consent is best, but an alternative is to inform the employee (with some sort of employee confirmation of the information) that by continuing employment she has consented to her devices being searched and recordings being deleted.
Video Recordings by Employers in the Workplace
- Employers should obtain written consent to record their employees.
Some employers have instituted video recording, including on company vehicles or in work areas. Employers should obtain written consent before video recording employees because several state laws create restrictions on recording, even in the workplace.
And employers should absolutely get written consent if audio is included, because not only the federal wiretapping laws but the laws of every state (including one-party consent laws) require that at least one party to an audio-recorded conversation consent to being recorded.
At the very least, employers should provide written notice that employees are being recorded (some states, such as Connecticut and Delaware, even require this.)
- Employers should not record video in private areas.
Although recording on vehicles, in workplaces, and in places open to the public is generally allowed, employers should be careful not to record in private areas. A good rule of thumb is this: if your employee is going to take off their clothes in an area, you should not be recording there (bathrooms, locker rooms, sleeper berths in long-haul trucks). In California, for example, employers cannot record video in restrooms, locker rooms, or any room designated for changing clothes, unless the employer has a court order. California Labor Code § 435(a). Another risk is recording in an area where employees engage in protected, concerted activity during non-work hours, which could violate the National Labor Relations Act.
- Employers should implement a retention policy for video recordings.
An employer might catch an employee lying based on a video, or have a recording of the employee’s misconduct. But that video will only help the employer if it’s still around for any subsequent government proceeding or lawsuit. So it’s critical to have a policy in place—ahead of time, and uniform—for how long employer-recorded videos will typically be preserved. And employers should also have a policy in place for saving especially important videos beyond the timelines in the uniform policy.
So if a memory card only holds video for a week and an employer happens to record a legally significant video related to an employee’s termination or another investigation on it, the employer may need to keep that video, potentially for years, to be able to use it in subsequent litigation. (For example, Section 1981’s statute of limitations is generally four years, the Fair Labor Standards Act can be up to three years, and California recently extended the limitations period for discrimination/retaliation/harassment complaints to three years, with a year after the state agency makes a determination for the employee to sue, meaning at least four years of potential risk, California Government Code § 12960.)
So employers should establish a policy that
- preserves all video for a known period,
- intervenes effectively to collect legally significant video within that known period,
- and preserves collected video for the period covered by relevant statutes, which could be years.
The Bottom Line
It is easier for employers to restrict employee video recordings in the workplace, and employers can record their own employees, within certain limits. But it is best to do so after giving considerable thought about what policies and procedures should be implemented and followed to make these restrictions and recordings lawful and effective.