Almost every company with employees has at least one employee who feels misunderstood, maligned and offended, by everyone and everything and refuses to conform. Small business employers that run their companies more like a family than a business are often caught in the crosshairs of wanting to fix the situation while not knowing precisely what to do.
One of the tools of intimidation often used by disgruntled employees is secretly recording meetings and conversations — trying to catch employers and coworkers in bad behavior and evidence of alleged slights.
Some states require two-party consent, but most don’t. Utah, for instance, is a one-party consent state, which means that if two people are having a conversation, one of them has the right to record the conversation. However, it is illegal to record conversations between people unless at least one person is part of the conversation. Employers and employees in one-party states can legally make secret recordings of their conversations, but they have to be part of the conversation they are recording. If the employer or employee records a conversation taking place around them that they are not part of, then that is another matter — possibly an illegal one.
Companies may prohibit audio recordings in the workplace. Due to the prevalence of smartphones with audio recording apps and cameras, many organizations have decided to prohibit employees from making recordings or taking photographs unless the recordings or photographs are for a work-related purpose. You should know, however, that while an employee might be violating his or her employer’s policy by making a recording in the workplace (and could be disciplined up to and including termination), a legally made recording could still be evidence. The employee may use it in an administrative or court setting.
If you discipline an employee for making a recording, the problem is not the possibility that the employee might sue the company. The problem is that if the recording or photo is proof of discrimination or other actionable behavior, then courts may then opt to use it as evidence.
Employers should think about whether they want or need to implement a policy to prohibit recording. Employees cannot speak freely about work or personal matters if they know someone is eavesdropping on them and keeping records. Recording conversations without the participants’ consent is a quick way to alienate coworkers, and it is also a quick way for employers to lose control of the company’s proprietary and confidential information.
