Remote Working Complicates Privacy Expectations

Recently, a CEO of a certain furniture company went viral after telling her employees, on a recorded videocall, to “leave Pity City” regarding their bonuses being cancelled. While the video may leave you scratching your head, it may also leave employers wondering about the legality of recording video or telephone calls in the workplace.

What Does the Law Say?

Like a lot of employment law questions, there is a legal answer and a best practice answer to this question. Legally, most states in the Great Lakes region (Ohio, Indiana, Michigan, and Wisconsin) require only one party’s consent to record a communication. In Illinois, both parties must consent to the call being recorded. And in Wisconsin, this process is governed by section 968.31 of the Wisconsin Statutes. Under this section, you may legally record a conversation if (1) you are a party to the conversation, or (2) with prior consent of the parties involved.

Rights to privacy may complicate what, at first blush, appears to be a simple rule, however. Wisconsin’s Right to Privacy statute (Section 995.50) doesn’t specifically refer to videotaping employees, but it does prohibit an invasion of privacy. This includes an intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private. Limiting a right to privacy to, well, private places, has often insulated employers from liability under the Right to Privacy statute because workplaces are usually not private places.

Because of this, cases filed by employees were unsuccessful when alleging an invasion of privacy due to video surveillance, where that surveillance was conducted to monitor productivity, maintain security, and deter theft. Courts found that in those scenarios, employees have no reasonable expectation of privacy since the recording is known to the employee, and in occurring in places like the factory floor or store showroom—where there isn’t a reasonable expectation of privacy.

In contrast, when employers record employees without the employee’s knowledge, issues with invasions of privacy are more likely to occur. Often these cases involve investigating theft, sexual harassment, or other potential workplace crimes. In these situations, courts will analyze whether the employer had a legitimate purpose for the surveillance and whether the surveillance was more intrusive than necessary.

What About Today’s Virtual World?

However, in the Zoom-world we now live in, with work and personal spaces merging, earlier cases fail to delineate a bright line rule for employers. Employees attending a virtual meeting are working—normally an activity with a limited expectation of privacy. However, they attend the meeting at home—normally the place with the highest expectation of privacy. What if the recording captures third persons in the background, or conversations off screen? Prior cases offer little guidance on what the expectation of privacy is in such situations.

Further complicating the situation is the fact that employees could be in different states, with different consent rules. Which law now governs? At least in one case, the Southern District of New York ruled that the New York resident (from a one-party consent state) calling into Illinois (a two-party consent state) would be governed by Illinois law.

Bottom Line

While the case law is unsettled on this matter, some commonsense approaches are available. If you plan to record a meeting, inform those ahead of time that the meeting is being recorded. This will allow employees to hold a meeting in an appropriate place to be recorded or set up virtual backgrounds to eliminate incidental recording of third persons. Many platforms already have built-in features to help address privacy issues.

For example, Zoom tells participants when a video call is being recorded and users must consent, or they won’t be admitted to the meeting. Be aware, however, that this setting can be altered to only affect external participants.

Employer policies prohibiting employees from recording conversations in the workplace may run afoul of Section 7 of the National Labor Relations Act (NLRA). Accordingly, any policy must be narrowly tailored. Employers contemplating such policies should consult with employment counsel.

This brings us to our last commonsense rule: If you are being recorded (with your consent), everything you say, can and will have the opportunity to go viral. And when it does, you can visit Pity City, but you can’t live there.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.