Secretly Recording in the Workplace: Can I do it? Should I do it?

Generally, you have the burden of proving if your employer’s actions toward you violate the law. Of course, sophisticated employers seldom admit to doing something that breaks the law, and often employment cases turn on a “he-said/she-said” moment, where the employee claims something was said and the employer later denies it. One way, we sometimes see employees try to even the playing field by secretly recording conversations in the workplace to have proof of illegal activity beyond their own word.

This article answers some key questions employees often have about recording in the workplace. Is it legal for you to do it? Can your employer order you not to? Can your employer punish you for recording? Is it a good idea?

First off, in Texas, it is generally not illegal for you to secretly record a conversation you are part of because Texas is a “one party consent” state. While Texas does criminalize intentionally intercepting (such as recording) wire, oral, or electronic communications, it is a defense if you are a party to that communication or if someone who is a party to it gave consent prior to the recording (Texas Penal Code § 16.02(c)). However, it is important to keep in mind that not all states have “one party consent” rules. If you do something like recording a phone call with someone in another state, such as California, that might violate the law of that other state. Other federal laws, such as HIPAA or national security laws, can also affect whether a recording is illegal if it contains someone’s health information or classified information.

Can your employer legally forbid you from recording in the workplace?

In many situations nowadays, probably yes. During the Obama administration, the National Labor Relations Board (“NLRB”) ruled that an employer’s policy banning all workplace recording violated the National Labor Relations Act (“NLRA”) because it would tend to have a chilling effect on employees’ willingness to exercise their rights under the NLRA. But the NLRB has walked back that decision since then, ruling in 2017 that a blanket no-recording policy is allowed if there are “legitimate business justifications” for it and the likelihood it would have a chilling effect on employees’ rights is “comparatively slight.” In that administrative case, The Boeing Company claimed it had legitimate reasons to ban recording to protect trade secrets and classified government information, and the employee could not point to a specific right that the rule interfered with.

Thus, whether an employer can prohibit all recording depends on the reasons it can give for that rule and if the rule would prevent employees from doing things protected by the NLRB, such as discussing the terms and conditions of their employment with coworkers. A rule that targets specific kinds of recordings closely tied to rights under the NLRB may still be illegal. Also, if your employer made you sign a trade secret agreement, that may limit how you can use recordings containing proprietary information.

If your employer has a valid rule against recording in the workplace, it may legitimately punish you for violating the rule, including by firing you. But if that punishment is really a smokescreen for punishing you for protected activity, that is another matter entirely and may violate the law.

Finally, is recording in the workplace generally a good idea? If the circumstances of a recording violate the law, obviously not. But even when recording is otherwise allowed, whether it is a good idea may still depend on the circumstances. Sometimes a recording can be the “smoking gun” to win a case by showing that the employer clearly violated the law or is clearly lying about something now. Other times, the recording may be ambiguous or confusing, and is less helpful.

Unfortunately, some judges or juries may be hostile to an employee who would secretly record in the workplace. They may reason that they would never want to work with such a person, or infer that the person is being dishonest for doing so—even if the recording exposes that the employer is lying. Also, you often would have to turn over any workplace recordings to your employer if you sued it. Employers may go out of their way to paint employees in a bad light for recording in the workplace, especially if there are a lot of lengthy recordings.

If you believe your employer is violating the law and you have recorded evidence of that—
or even if you simply are not sure—you should consult with a Dallas Employment Attorney.

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