May an employer prohibit employees from recording conversations in the workplace?

In general, yes, but employers should make exceptions to no-recording policies to ensure that employee rights under the National Labor Relations Act (NLRA) and under federal and state whistle-blowing and wiretapping laws are not infringed upon.

In August 2023, the National Labor Relations Board (NLRB) issued a decision in Stericycle which overruled previously issued guidance, creating a new standard for determining whether work rules, such as workplace recordings, violate the NLRA. Under the Stericycle decision, the NLRB considers a work rule unlawful if it has a reasonable tendency to discourage employees from exercising their rights under the NLRA unless the employer can prove that the work rule advances "a legitimate and substantial business interest" and that the employer is unable to advanced that interest with a more narrowly tailored rule.

Therefore, employers will want to ensure that a no-recording policy does not interfere with employees' rights to engage in protected concerted activity. The NLRB's 2023 Starbucks ruling noted that an employee who makes an audio or video recording in the workplace may be engaged in legally protected activity, depending on the facts and circumstances of the particular case. According to the NLRB, such recordings can be legally protected activity if they are made to:

• Preserve evidence for use in a possible grievance.
• Document meetings held by an employer regarding unionization.
• Collect and compare information a union needs to respond to arguments advanced by the employer at the meeting about unionization.
• Police a collective bargaining agreement.
  

Similarly, federal and state laws with whistle-blower protections for employees may be infringed upon by policies that limit employees' ability to gather evidence by means of recordings.

Federal law also prohibits intentional interception (which includes recording) of wire, oral or electronic communications without the consent of one party, and some states require the consent of all parties to lawfully intercept communication. While the consent of the recorder will satisfy one-party consent rules when the recorder is a party to the conversation, in states where two or more parties' consent is required, secret recordings could be prohibited, assuming federal rights are not otherwise interfered with.

Due to the federal and state regulations involved, as well as existing and developing case law in this field, it is advisable for employers to consult with legal counsel in developing a policy regarding employee interception of communication in the workplace.