While an administrative law judge at the National Labor Relations Board recently supported Whole Foods, the matter was anything but clear- cut. The purpose of the policy was instrumental in the administrative law judge's decision, which means a company runs a risk by implementing a no-recording policy without justification for it.
Confusion Abounds in Court Cases
There's still a lot of confusion even after an employee gets caught breaking the law.
Let's say an employee secretly records a manager doing something unlawful or unfair and decides to bring it to light. The illegally obtained evidence is likely still admissible in court. Starkman says he has not seen a court exclude a recording specifically because it violated the eavesdropping laws.
Sure, the employee may be criminally liable, and the company can refer the employee for prosecution — but this isn't a sure thing, either. "There may be some blowback, but you've got to be careful about that, too," Starkman says. "If the company has seen employees record something surreptitiously and didn't do anything about it, and now it's prosecuting the whistleblower, this could be seen as retaliation."
Secret recordings in the workplace are a slippery slope that's only going to get worse. Throw in Google Glass, wearable technology, ubiquitous smartphones, a culture that loves to hit the record button, a legal system trying to catch up, and what have you got?
"A real rabbit hole," Starkman says.
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