A Reminder You Still Need to Be Careful About Secret Workplace Recordings

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Feb 24, 2016

By Eric B. Meyer

Remember last month when I told you about how the National Labor Relations Board concluded that an employer could not maintain a workplace rule that banned employees from recording workplace conversations, absent prior company approval? (More on that here).

Well, before you get any bright ideas about secretly recording your boss in the Commonwealth of Pennsylvania, you’d better think twice.

Pennsylvania’s high court goes against NLRB’s ruling

Many states have laws requiring two-party consent for recordings. Pennsylvania is one of them. Traditionally, these laws precluded use of a concealed tape recorder to record a conversation, without the consent of the person being recorded. I say a “concealed tape recorder,” because wiretap laws like this one in Pennsylvania were implemented before smartphones.

Even though no one really uses those microcassette recorders anymore, that doesn’t make these wiretap statutes obsolete.

Indeed, last Friday, the Pennsylvania Superior Court held that using an app on a smartphone, rather than a concealed tape recorder, to surreptitiously record a conversation, is also a violation of Pennsylvania’s wiretap statute.

And it just so happens that the recorded conversation involved the defendant and his former boss.

Secret recordings could carry criminal penalties

So, let’s not crown the National Labor Relations Board’s credo that workplace recordings promote protected concerted activity just yet. Over time, that may not hold up, especially if the GOP regains the White House and the complexion of the NLRB subsequently changes.

But in the meantime, even if the current Board requires employers to relax workplace recording bans, remind your workforce that secret recordings could carry criminal penalties.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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