Secretly recording conversations in the workplace is on the rise, and in some states, it is perfectly legal, but in the end, it all comes down to the subject matter being recorded. This trend has prompted employers to add human resource departments to their companies or to reach out to human resource management companies to implement employee training and to help to create employee handbooks outlining appropriate workplace behavior stating what is or is not allowed in the workplace; this should include tape recordings or taking photos at work.
Discrimination, sexual harassment, the "Me Too" movement, and whistle blowers have caused lawsuits to accelerate at record speed due to employees' taping conversations at work or at a company function outside the office without their employer's or co-worker's knowledge, but is this legal? Yes … and no.
Federal and state laws vary across the nation from the following: One Party Consent, All Parties Consent, Mixed Consent and Unestablished Consent. Georgia is a One-Party Consent State, as are most states. Georgia law, O.C.G.A. § 16-11-66, clearly states that it is okay to record a conversation where one person gives consent to the recording. This means that the person making the recording has knowledge of the recording and is consensual, even though the person he/she is recording has no knowledge of the recording. It is allowed either in a public or a private place.
Conversely, Georgia law O.C.G.A. § 16-11-62 prohibits recording a person or a phone call if the people they are recording have no knowledge of it: e.g., wire-tapping a phone between two parties other than yourself, or leaving a tape recorder in your bosses office to record a conversation between your boss and someone other than yourself; this action is strictly forbidden and will generally not hold up as evidence in a court of law.
So, what does an employer need to do to protect his or her company from a potential lawsuit? You must make the rules crystal clear that company policy prohibits tape recording supervisors, owners, or fellow employees in the workplace; however, according to The National Labor Relations Board (NLRB) the following may be legally recorded without consequence:
- Recording images of protected picketing;
- Documenting unsafe workplace equipment or hazardous conditions;
- Publishing discussions about the terms and conditions of employment, including discussions with management;
- Documenting inconsistent application of employer rules; and
- Recording evidence to later use in judicial or administrative proceedings."
Will outlining what is and what is not allowed in the employee handbook prevent secret recordings in the workplace? Maybe. Generally, the NLRB agrees that no-recording laws or no photos taken in the workplace should be allowed.In the case of employee endangerment, such as a whistle-blower situation, and if there is just cause that a real and present danger exists, the court will likely allow the tape recording as evidence, even though it was strictly forbidden. It pays to know your employees' rights, as well as your own.
Because the rules can be highly complicated, discussing your options with a reputable Human Resource Management Company like Stellaris Group in Marietta, Georgia will be your best bet. Stellaris Group has a network of knowledgeable personnel who stay up-to-date on human resource issues and they are more than willing to answer your questions and to address your concerns.