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Secret Video and Audio Recordings a Legal Minefield for Employers

By Tom Kaneshige, CIO
February 06, 2014 10:51 AM ET

CIO - It's never been easier to secretly record co- workers, supervisors and executives -- in corporate meetings casual conversations, office parties, even cubicles and bathrooms,. Nearly everyone carries a highly sophisticated, powerful recording device (a smartphone) in his or her hip pocket these days.

With Google Glass and other wearables woven discretely into clothing coming out soon, anyone can become a super spy like James Bond (or maybe someone with less noble intentions). There's no question secret video and audio recordings will explode in the workplace. (They already do out on the public streets of Boston.)

This trend spells disaster for companies, especially those that encourage the use of personal mobile devices at work under formal BYOD policies. Imagine the fallout -- legal and otherwise -- of a workforce secretly recording the comings and goings of corporate life. Employees can prove managers treated them unfairly in performance reviews, swipe audio in a confidential conference call, record obnoxious behavior, and become a whistle blower for illegal or immoral activity.

Record Now, Ask Questions Later

It's already happening; we're in a record-first culture. A quick scan of the news or a search on YouTube.com will turn up all sorts of videos showcasing bad behavior. Sadly, most people will record a street mugging rather than try to prevent it. In the workplace, a boss berating an employee seems to be especially good fodder, as in this leaked audio of AOL CEO Tim Armstrong shockingly firing an employee in front of a thousand co-workers.

"If there's an issue, everybody's first instinct is to whip out their phone," says attorney Paul Starkman at law firm Pedersen & Houpt.

While companies can try to prevent secret recordings by either citing the law or drafting strict employee policies, there are no guarantees. Simply put, it's a legal quagmire for both employer and employee.

For starters, audio-only and video-with-audio recordings fall under eavesdropping laws, while video-without-audio recordings fall under invasion of privacy laws. Each state also differs on how it handles secret audio recordings. In Illinois, for instance, both parties must consent; it's a felony to surreptitiously record someone else.

Consent, though, leads to murkier water. If someone holds up a smartphone and appears to be video recording in an open and obvious way, and the person being recorded looks into the smartphone and doesn't object, this could be considered implicit consent. On the other hand, it's unclear when Google Glass is recording (although Google Glass on someone's face is hard to miss, so you could argue the implied consent theory there as well).

"It really gets complicated," says Starkman.

Even an employee policy clearly stating that video and audio recording is not allowed on premises and during work hours won't keep a company safe from lawsuits. Consider the case of Whole Foods: United Food and Commercial Workers, Local 919 filed a complaint against Whole Foods Market last summer concerning an employee policy that prohibited recording of conversations. Here's the policy:

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