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Privacy Businesses Government United States

Feds: Your Employer Can't Stop You From Recording Conversations At Work (huffingtonpost.com) 139

schwit1 writes with news about a ruling by the National Labor Relations Board about your right to record conversations at work. The Huffington Post reports: "If you're looking to catch your boss breaking labor law, that smartphone in your pocket might be your best friend, thanks to a new ruling from federal officials. On Thursday, the National Labor Relations Board ruled that upscale grocer Whole Foods cannot forbid employees from recording conversations or taking photographs at work without a supervisor's permission. (Local laws, however, could still come into play in certain situations, as several states require the consent of two parties in order for a conversation to be recorded legally.) At the center of the case were stipulations in Whole Foods' 'General Information Guide,' an employee manual laying out worker do's and don'ts. The guide prohibited workers from taking photos or recording conversations inside a store 'unless prior approval is received' from a manager or executive, or 'unless all parties to the conversation give their consent.'"
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Feds: Your Employer Can't Stop You From Recording Conversations At Work

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  • by Anonymous Coward

    There are certain things we need to admit are signs that you are not just a dick, but a criminal dick.

    Any company attempting to prevent employees from recording them should by law, instantly trigger a full regulatory audit - everything from the IRS to OSHA.

    If you try to stop your employees from telling on you, something's major league wrong with the way you run your company.

    • by epyT-R ( 613989 )

      Sure, but only if the regulatory law is sane to begin with. Also, accusers should have to present evidence. No guilty until proven innocent style witchhunts.

    • I worked for a railroad and they all have work rules that forbid employee recording devices on the property. Because a high percentage of management are lying dicks who would have you do something you knew was stupid and deny it later.
    • by cfulmer ( 3166 )
      Careful there.... There are all sorts of legitimate reasons to bar recording in the work place. You better believe that defense contractors have that sort of rule in place, for example. You can't read too much into this particular reading -- it applies to Whole Foods only and only if it survives an appeal to an actual court.
  • Don't do it in Maryland. Unless all parties agree to being recorded it's a felony offense.
    Only exception is recording the police who have no reasonable expectation of privacy when out in public performing their official duty.
    • Same in Florida.
  • by SpectreBlofeld ( 886224 ) on Thursday December 31, 2015 @12:53PM (#51216485)

    This one line from the summary shouldn't be ignored: "(Local laws, however, could still come into play in certain situations, as several states require the consent of two parties in order for a conversation to be recorded legally.)"

    Here's a map of 'eavesdropping' (recording) laws by state:

    http://www.vegress.com/can-i-r... [vegress.com]

    Washington, California, Nevada, Montana, Michigan, Pennsylvania, New Hampshire, Massachusetts, Rhode Island, Connecticut, Delaware, Maryland, and Florida all seem to require two-party notification before recording conversations, otherwise it's deemed as 'eavesdropping' and illegal.

    • Addition:

      I have no idea what happens if you're recording a phone call from a state that DOES allow only one party being notified to a state that does NOT.

      • It's sort of a gray area with conflicting state rulings.

        • by Anonymous Coward

          No it's not. The party in the one-party state is free to record the conversation as the laws in their juridiction are single-party consent. The party in the all-party state must receive consent from all involved parties though this can be as simple as clearly informing all parties that the call is being recorded. Any party remaining on the call after is generally considered to have given consent as they were free to terminate the call IIRC.

      • According to the link you posted, federal law applies when the call crosses state boundaries. That would make sense because federal law usually does apply to interstate transactions.

    • Interestingly, while recording audio may require two-party consent, recording video without audio does not require two-party consent in most if not all jurisdictions. This is why security cameras are usually video only.

    • Since I'm in Michigan's Upper Peninsula, and it is shaded neither red nor green, I guess that means I can do whatever the hell I want...
    • A conversation recorded by one of its participants is never "eavesdropping". If that is the rationale used by those promoting two-party consent laws, then they either don't know what words mean, or they're deliberately trying to confuse people.

      • Perhaps they mean that the recording device is a "third", undisclosed (and therefor eavesdropping) listener.

  • Remember when (Score:1, Insightful)

    [...] ruling by the National Labor Relations Board about your right to record conversations at work.

    Can anyone remember when laws were made by elected officials?

    It seems like nowadays some federal agency steps in and declares that they're the governing authority on something, that their decisions are law, and everyone should obey.

    That doesn't seem to mesh with what we were taught in school.

    Aren't our lawmakers elected?

    • Re: (Score:2, Troll)

      It seems like nowadays some federal agency steps in and declares that they're the governing authority on something, that their decisions are law, and everyone should obey.

      Yes because those federal agencies were created by Congress who then gave them the authority. The NLRB didn't pop into existence out of the ether.

      Aren't our lawmakers elected?

      Yes, and then they create agencies to which they delegate duties. Federal agencies are a new thing to you? Hate to break it to you but they've existed for over two hundred years.

    • ...Can anyone remember when laws were made by elected officials?...

      Laws still are made by elected officials. Those elected officials made the laws that gave the power to the Federal agencies to issue rulings such as the one under discussion here.

      That doesn't seem to mesh with what we were taught in school.

      Your should have paid more attention.

      • by epine ( 68316 )

        Your should have paid more attention.

        Seems like there's never quite enough attention to go around.

        I tend not to blame my schooling—good, bad, or indifferent—over any scrap of misremembered misinformation that five quality minutes spent on Wikipedia puts into the shade.

        Schooling needs to address bigger issues, such as just what a sorry state one needs to be in at the outset (i.e. most of us, on most subjects) before the beer goggles of profound ignorance cause Wikipedia to resemble a worthy first

    • 1st Amendment:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      Notice the first word. It does't say "Congress, or any government agency"

    • C'mooon, you still think you have any say in who's going to govern you?

      • What exactly is the issue here? The creation of federal agencies is derived directly from the Constitution and backed up by 200 years of case law. The GP must have been quite a shitty teacher to not have learned about things such as the "Necessary and Proper Clause" along with the Supreme Court ruling in McCulloch v. Maryland.

        • The GP must have *had* quite a shitty teacher

          Fixing that for myself.

        • What exactly is the issue here? The creation of federal agencies is derived directly from the Constitution

          Well, the real actual issue is that the Constitution doesn't grant any kind of NRLB power to the Feds - that's a state problem, should States wish to deal with it (per the 10th Amendment). All the Founding Fathers, including Hamilton, wrote about the limitations of Congress's delegated powers before Ratification, it's discussed in the minutes of the Constitutional Convention, and all of them excepting

      • Just because we aren't using it, doesn't mean we don't have the power. Only we can fix it. All that is required is the will. With that we can do anything.

        • Fix what? Creating federal agencies and delegating them authority to regulate is a Constitutional power of Congress. Why do you and the GGP act as if this is somehow a new thing?

          • We can elect a congress that will properly exercise its constitutional authority over these agencies. Is that really so difficult to understand? Or shall we just continue with the blame game?

    • by bws111 ( 1216812 )

      It seems your school did a crappy job. The LEGISLATIVE branch (Congress) makes laws. These people are elected. One of the LAWS they made was the National Labor Relations Act (1935). This Act created the NLRB. The Act was ruled Constitutional by the SCOTUS in 1937.

    • by breech1 ( 137095 )

      It seems like nowadays some federal agency steps in and declares that they're the governing authority on something, that their decisions are law, and everyone should obey.

      Because it is. Congress delegates authority [thefreedictionary.com] to executive agencies to handle the pesky details that congress doesn't want to deal with because they have important things to do like raise funds for their election campaigns. The courts have been fine with it so long as Congress spells out the limits and so long as the agency doesn't overstep their bounds. For this case, the NLRB has jurisdiction over private sector [wikipedia.org] labor disputes and so can make a ruling like they did. Still subject to local laws, as point

    • by sjbe ( 173966 ) on Thursday December 31, 2015 @01:16PM (#51216679)

      Can anyone remember when laws were made by elected officials? It seems like nowadays some federal agency steps in and declares that they're the governing authority on something, that their decisions are law, and everyone should obey.

      That is how it has been since the signing of the Constitution. The legislature makes laws, the executive branch makes regulations [wikipedia.org], and the judicial branch makes case law [wikipedia.org]. All three are types of law. Some are done by elected officials others aren't. All three are necessary components of a functioning legal system. Congress does not and never has passed laws that are fully fleshed out to every detail. And that's a good thing because Congress is clearly not filled with domain experts for most subjects. The legislature sets the framework and the executive branch makes it work. They delegate this authority to federal agencies who then issue regulations filling in the details. It has ALWAYS worked like this. ALWAYS.

      That doesn't seem to mesh with what we were taught in school. Aren't our lawmakers elected?

      Sounds like you got some bad schooling. Many lawmakers are elected in all three branches of government. Others are appointed. It's been that way since the dawn of the republic in the US.

    • Can anyone remember when laws were made by elected officials?

      Do you think they just invented a right to record people? Strange how the grandstanding government hater thinks we need the government's permission to do something.

      We have the right to record anything we damned well please. We're doing it constantly in our heads; fortunately technology gives us a way to do it that is permanent and non-repudiable.

      We only restrict that right with laws in the interests of privacy, trade secrecy, copyright, etc.

    • Do you even law bro?

      This isn't creating a law or regulation. It's saying Whole Foods doesn't have the ability to create such regulations/laws on their own.

    • Can anyone remember when laws were made by elected officials?

      It seems like nowadays some federal agency steps in and declares that they're the governing authority on something, that their decisions are law, and everyone should obey.

      That doesn't seem to mesh with what we were taught in school.

      Aren't our lawmakers elected?

      What you're referring to is known as the Doctrine of Nondelegability.

      http://constitution.findlaw.co... [findlaw.com]

      The SCOTUS has gradually all but destroyed any restrictions on the Congressional delegation of it's regulatory/lawmaking powers.

      The rationale was that delegability was necessary in order to produce enough Federal laws & regulations quickly enough to be able to control through laws and regulations all the existing and emerging new areas of the economy and society at large that government felt itself enti

  • They're a big thing here in Nawth Ca'lina where we have literally thousands of poultry and hog factories. And a hell of a lot of animal abuse too, by the way.

    http://www.theatlantic.com/hea... [theatlantic.com]

    • Factory farms should be considered animal abuse. Living in squalor, packed in cages, fed god knows what kind of food, this all leads to horrible sanitation, strange bacterial evolution, and meat that is borderline poisonous.
    • And NC only requires any one of the primary parties of a conversation to consent to recording.

      I.E. If you and I have a conversation, and I record it, its perfectly legal regardless of your opinion on the matter. So if you're doing something wrong, its is perfectly legal for me to secretly record you and then make it public as long as I'm a principal participant in the conversation. That means that if you and I are talking, I can record it ... but my wife sitting next to me and not involved, could not.

      Ag

    • They're a big thing here in Nawth Ca'lina where we have literally thousands of poultry and hog factories. And a hell of a lot of animal abuse too, by the way.

      http://www.theatlantic.com/hea... [theatlantic.com]

      That is the state making a law, which they can do. This case is an employer trying to prevent an employee from taping a conversation even though the law allows it and specifically banning taping as an act to prove that a supervisor told them to do something.

      Slight difference.

  • But then I would probably be on the hook too, for knowingly working for a criminal.
  • My manager used to have his Windows notebook recording all the conversations in his office, and some conversations in meetings. He said it was better than taking notes....
  • Even if you're employed by the government?

    Just checkin'...

    • Yes, even if you're employed by the government your boss can not violate federal law.

      • by bws111 ( 1216812 )

        Wrong again. The NLRB specifically only has jurisdiction over PRIVATE business and the USPS.

        • And you are also incorrect, NLRB rulings can apply to federal workers, unionized on not.

          An example: non-union workers of a unionized workplace. A unionized Federal Fire Department can have both GI and civilian emplyees. If the civilian union employees are granted something in the union contract (1-hour lunch break) then the GI must also be afforded the same. Or maybe after duty hours the civilians have negotiated the right to change into workout gear for wear around the station then the GI must also have

  • by Solandri ( 704621 ) on Thursday December 31, 2015 @01:26PM (#51216771)
    As an employer, I can kinda understand Whole Foods' situation here. If you prohibit photos and recordings in the workplace, the workers' rights folks claim you're trying to hide abuses in the workplace. If you don't prohibit photos and recordings in the workplace, the privacy rights folks claim you're not doing enough to protect your employees' privacy in the workplace (essentially extending the corporate shield to also protect your employees from liability, not just the owners).

    By letting the government make the ruling, the matter is settled and the company doesn't have to worry about liability either way.

    This sort of thing is a good lesson for those who erroneously believe in absolutes (the tone of TFA is that there is a "right" and "wrong" answer to this). It is exceptionally rare for a single principle on any issue to always be correct. There is almost always a situation where that principle will be wrong because some other principle will overrule it. In this case, you have the right to privacy in the workplace butting heads with the right to publicize workplace abuses. I'm not sure what the correct balance is, and I'm not sure the government does either. But at least this way the company doesn't get caught in the crossfire. All a company has to do is comply with the government ruling, and the fight over the correct balance will bypass them and go straight to the courts. So even though Whole Foods lost the case, they still won.
    • This is where property rights make things easy. It's the employers property so it should be their rules. The employee can choose to work their or not. If the rules are too draconian then you won't have good employees and your business suffers. The problem with a one size fits all solution is you have no idea if it is the preferred solution. With a market of ideas multiple ideas can exist and people can chose to live with those they like.

      • Except as we've all learned, property rights mean jack and shit when the government gets involved. What, you think that deed that has your name on it makes that property yours? LOL, no, just refuse to pay your taxes and you'll find out exactly how quick you're wrong about that idea.

  • There is nothing preventing the employer from not continuing to employ the person.

  • This is important. It is also important to remember that in almost every workplace there is video surveillance and everyone has consented to be recorded. Once you've consented to be on candid camera you've waived your personal right to refuse. It could also then be argued that every employer in the United States has agreed to the terms of labor regulations and therefore, under this interpretation of those regulations, by employing others has given explicit consent to be recorded.

    So it could be argued that i
    • by PPH ( 736903 )

      A couple of things: TFS appears to address audio recordings. The law in many states treats these differently from video. You have a right not to be audio recorded, but if you are in public (or perhaps an area open to observation by third parties) you can be photographed.

      Many employers have policies that make the recordings made on the premises the property of the company. This may not apply in publicly accessible areas, where anyone can whip out a phone and snap a selfie in front of the produce. But get ca

      • "Many employers have policies that make the recordings made on the premises the property of the company."

        This ruling would seem to overrule such policies.
  • Play really loud background music over the PA system. In the bathroom turn on the faucets and flush the toilets. Or maybe they can use EMP to zap your phone at the entrance. How are you going to prove they did it?

  • Just live in a "one party state". This means you can record your personal conversations in most any setting, work included. Kentucky is a one party state.

  • but they can stop you from bringing your phone to work. A lot of companies do not allow cell phones in the workplace.

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