By: Michael P. Sawicki, Esq.
The company has decided to terminate an employee for misconduct. The employee, with or without the consent of the company, records the termination and then posts it on social media. The video goes viral, and the company has a marketing logistics nightmare. The employee has risked violating their company agreements, various privacy laws and possibly specific state laws requiring consent. Many employee handbooks or business codes of conduct restrict employees from making disparaging remarks about the company with legal consequences for violations. The employer could face damage to its reputation if it pursues legal action.
In the world of virtual meetings, employers need to be aware of social media trends and need to conduct all terminations as if they were going to be made public. Certain states like Maryland are two-party consent states which require both parties to consent to being recorded. Other states are one-party consent states where only the employee needs to consent to the recording. Employers in a two-party consent state should consider starting any disciplinary meeting with a statement that the employer does not consent to any recording of the meeting, thereby making it illegal for the employee to record the meeting. Even if the employee resides in a one-party consent state, as long as the employer is located in a two-party consent state, the laws of the two-party consent state will govern. Recoding without consent in a two-party consent state can have privacy and criminal implications.
Even if the videos violate state laws or company agreements, employers that pursue legal claims against a former employee also face risk. There may be liability under the National Labor Relations Act under which there is precedent that protects video recording (even in two-party consent states) when it is done to protect other workers or capture unlawful activity and classified as “protected concerted activity” under the law. Protected concerted activity covers a wide array of employee activities, including but not limited to discussing wages, benefits, and other terms and conditions of employment, union organizing, and other collective employee organizing efforts.
The Equal Employment Opportunity Commission has taken a similar view that employees may record their disciplinary proceedings without their employer’s consent regardless of state consent laws if based on fear of discrimination or harassment. State courts have issued various differing opinions regarding the legality of any recording made to document harassment without consent to the recording.
Employees should, however, be mindful of the impact of posting on social media and the impact it may have for future employment opportunities. Employers are more likely than ever to look at a potential candidate’s social media history and online conduct with a simple search and react accordingly. Such secret recordings may implicate wiretapping laws, privacy laws, and confidentiality and trade secret concerns depending on the nature of the business.
In developing and applying workplace recording policies, employers should be careful not to implement broad, blanket no-recording policies that do not account for protected activity as interpreted by the NLRB. Employers should carefully consider what types of recordings it must prohibit at the workplace for both legal and business reasons and then craft a tailored employee workplace recording policy that both meets employers’ legal and business needs and permits employees to engage in legally protected concerted activities under the NLRA. Employees should be careful of recording without consent and violating state laws, privacy laws and breach of confidentiality and exposure of company trade secrets.
If you would like to get more information on the creation of a recording policy and speak to an attorney about your needs, please contact Batoff Associates, P.A. at 410-864-6211.
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