Omarosa Manigault-Newman, a former Trump administration employee, released a book this week detailing her experience working in the White House. (Don’t worry, we don’t do politics on this blog). Around the same time her book was released, Manigault-Newman released a recording to the media. That recording, made in the White House situation room, was of the conversation between her and White House Chief of Staff John Kelly, during which Kelly terminated her employment.
This raises an interesting question for employers. Is it legal for employees to record disciplinary meetings and termination meetings in the workplace?
It depends, in some part, on where you live. Thirty-eight states and the District of Columbia are considered “one party consent” states. This means that only one party to a conversation must consent to a conversation being recorded for the recording to be lawful. Therefore, if the person recording the conversation consents to the recording, it is not illegal under those states’ wiretap statutes.
The remaining twelve states are considered “two party consent” states. Meaning that for a conversation to be recorded, both (or all) parties to the conversation must consent to the recording. Illinois is a two party consent state. Illinois prohibits the “surreptitious” recording of a “private conversation” without the consent of all parties to a conversation. In Illinois, if an employee attempts to record a workplace conversation, it is important that you emphasize that you do not consent to the recording.
Whether you are in a one-party state or a two-party state, it’s important that you maintain workplace policies that prohibit employees from recording private conversations. Historically, the NLRB has questioned the propriety of these policies, holding that such policies might chill employees’ rights to engage in conduct for mutual aid or protection under Section 7 of the NLRA. However, recent guidance from the NLRB has held that “no recording rules” are presumptively lawful. It is important that you tailor your policy in a manner that explains that employees may not record private workplace conversations, but that the policy does not prohibit employees’ rights under the NLRA.
Image Credit: From Pixabay, Creative Commons license, free for commercial use.