William W. Bowser, Editor; Scott A. Holt and Adria B. Martinelli,
Associate Editor
Young, Conaway, Stargatt & Taylor, LLP
Vol. 16, No. 11
November 2011
ELECTRONIC MONITORING
Recording workplace communications: What
do you need to know?
by Lauren E. Moak
Recording communications in the workplace is an issue that employers
f
ace with surprising frequency. However, it's often overshadowed by the
more exciting world of online misconduct. Many people have strong
f
eelings about the propriety of recordin
g
workplace communications, and
it's an area of the law that isn't entirely clear. Here's what you should
know to protect your company from liability.
Delaware law
In Delaware, there's some conflict over whether one party to a
conversation can record the communication without the other party's
consent. Delaware's electronic surveillance statute explicitly permits a
person to "intercept a wire, oral or electronic communication where the
person is a party to the communication or where one of the parties to the
communication has given prior consent to the interception." There are
limited exceptions, but this statute would seem to permit employers and
employees to record workplace communications.
However, Delaware law also criminalizes the act of "violation of privacy,"
which includes intercepting "without the consent of all parties thereto a
message by telephone, telegraph, letter or other means of communicating
privately, including private conversation." That means a party to a
conversation could conceivably be convicted of a crime for recording the
conversation without the other party's consent.
What to do, what to do?
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So what is an employer to do? There are different answers for each side of
the issue. When it comes to recording your employees' communications,
j
ust don't do it. There's more than one good reason not to record workplace
communications. Not only is the legality of the practice questionable, but
it's also likely to be unpopular with your employees. No one likes to learn
that what he thought was a private conversation was in fact being recorded.
If you do have a particularly problematic employee, a third-party witness
can always sit in on sensitive conversations. Just be sure that the witness
has a legitimate business reason to be present. HR professionals or other
managerial staff members are preferable.
When employees record workplace conversations, you must exercise your
discretion in dealing with them. Delaware is an at-will state: You can
terminate an employee for lawful conduct that's nonetheless inappropriate
in the workplace. If, in the exercise of your business judgment, you
determine that there's a good reason to terminate an employee who has
surreptitiously recorded workplace conversations, you're free to do so.
However, as with all terminable offenses, it's best to make sure your
employees are aware of the types of conduct that are and aren't permitted
in the workplace. Although you're free to terminate employees for any
lawful reason, you won't be popular if you fire employees for doing
something they thought they were allowed to do ― and you may be on the
hook for unemployment benefits!
Bottom line
It remains unclear under Delaware law whether someone may record
workplace conversations to which he is a party without the consent of the
other participants. Given that uncertainty, it's best to abstain from
recording workplace communications. To address employees who might
record workplace conversations, develop a policy and implement it. If you
choose to prohibit workplace recording, make sure your employees are
aware of the restriction and apply it fairly to all workers.
Copyright 2011 M. Lee Smith Publishers LLC
DELAWARE EMPLOYMENT LAW LETTER does not attempt to offer solutions
to individual problems but rather to provide information about current
developments in Delaware employment law. Questions about individual problems
should be addressed to the employment law attorney of your choice.
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