Editor’s Note: This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at spieper@lexipol.com.
My department’s human resource department has just come out with a new policy that I believe violates our state’s one-party audio recording law. The policy states that no audio recording of conversations will be tolerated in the workplace. I think an employee should be allowed to protect him or herself by recording conversations, especially when it comes to violation of rights. Can my department legally write and enforce a “zero-tolerance” policy for audio recording conversations when state law allows “one-party recording?” I was also under the impression that the NLRA says employers can’t do that.
You know the adage, a little knowledge can be a dangerous thing? It applies perfectly here.
Recording an oral conversation without the knowledge of the parties is generally considered to be a criminal offense, often called eavesdropping. Eavesdropping is illegal under state and federal law and is often incorporated into wiretapping laws (which serves to further confuse an already complex topic). We will talk about eavesdropping as a separate issue from wiretapping despite the interconnection in the law.
One-Party Consent and Eavesdropping
There is an important exception to eavesdropping laws recognized by the federal government and most states, namely that a party to the conversation can record the conversation or consent to a third party recording it. States that recognize this exception are typically referred to as one-party states since recording is permitted so long as one party to the conversation is aware.
Just to be clear about one-party jurisdictions: If A and B are having a conversation, A can legally record it or B can legally record it. In addition, either A or B can consent to a third party, C, recording it. Anyone else who records the conversation commits eavesdropping and could be charged criminally as well as be held civilly liable to those whose conversations were recorded.
A minority of states require that to avoid committing eavesdropping, all parties to a conversation must be aware it is being recorded. In an all-party state, A and B would both have to consent to anyone recording the conversation, whether it is A, B or C. Since you are not in one of those all-party states, we will focus on the law as it relates to one-party consent.
The ability of a party to a conversation to record the conversation or consent to a third party recording it is a defense to an allegation of eavesdropping. However, the existence of that defense does not establish an enforceable right to record.
As mentioned previously, the consequences for eavesdropping can be serious. In most jurisdictions eavesdropping is a felony. In addition, someone who eavesdrops can be held liable for civil damages. The ability of a party to a conversation to record the conversation or consent to a third party recording it is a defense to an allegation of eavesdropping. However, the existence of that defense does not establish an enforceable right to record in the sense that one may have a First Amendment right to free speech or a Fifth Amendment right to remain silent. It is simply a defense to a criminal charge or civil suit for eavesdropping.
As such, someone in a one-party state does not have an enforceable right to record their conversations whenever and wherever they may choose. Yes, they cannot be charged with eavesdropping, and yes they cannot be held liable for eavesdropping. Admittedly there may be some First Amendment protections that arise when it comes to recording conversations in public places (see Glik v. Cunniffe, 655 F.3d 78, (1st. Cir., 2011)), but an employer is within its rights to limit or prohibit audio recording in the workplace. As a matter of fact, I think it is advisable for a fire department to have a policy that limits audio recording in the workplace to protect firefighters from being secretly recorded.
While theoretically a state could enact a statute creating an enforceable right for an employee to record a conversation when necessary to “protect themselves,” I am not aware of any states that have done so. Some all-party states have enacted laws that permit recording without all-party consent under certain circumstances, such as to document wrongdoing or illegal activity. Such laws are inapplicable to your situation, but that may be the basis for your misunderstanding of the law. When you think about it, all such laws do is convert an all-party state into a one-party state when the recording is made for purposes of documenting wrongdoing.
Recording and Collective Bargaining
You mention the NLRA, which is the National Labor Relations Act, the federal law that authorizes collective bargaining in the private sector. The NLRA has no applicability to public-sector firefighters. However, perhaps you are referring to some decisions by the National Labor Relations Board (NLRB), which concluded that recording in the workplace can be a bargainable subject in certain workplaces because it involves “wages, hours, and other terms and conditions of employment.”
Collective bargaining for public-sector employees is governed by state law, not the NLRA. In states that allow firefighters to collectively bargain, it may be possible for a new policy regulating workplace audio recording to be subject to bargaining. To be fair, it could also be viewed as being a management prerogative, and thus not subject to bargaining. In either event, it would be a matter for the state’s labor board and courts to evaluate. While the NLRB’s decisions may be helpful to a state in making its decision, they would not be binding upon the state.
The Takeaway
To summarize, in a one-party state, a fire department can have a policy that limits or prohibits audio recording in the workplace. Employees do not have an enforceable “right to audio record” oral conversations in the sense they may have a right to free speech or right to remain silent. While in some jurisdictions such a policy may need to be negotiated, that will depend upon state law governing collective bargaining for firefighters.
