Prohibiting Workplace Recordings in Pennsylvania May be Permissible

In the face of the December 2015 NLRB decision (Whole Foods Market, Inc.), where the NLRB determined that an employer’s policy prohibiting workplace recordings violated the NLRA (see our previous post), employers have wondered if there is a way to prohibit workplace recordings. There may be a glimmer of hope for Pennsylvania employers, following a recent Pennsylvania Supreme Court decision (Commonwealth of Pennsylvania v. Smith), where the Court found that an employee’s act of surreptitiously recording a conversation with his former boss violated Pennsylvania’s Wiretapping and Electronic Surveillance Control Act.

The Facts

The employee had filed an internal complaint with the Company. The employee was later called into his supervisor’s office for a meeting (unrelated to his complaint) and the employee saw a copy of the complaint on the supervisor’s desk. Concerned that he may be terminated for “whistleblowing,” the employee decided to record the conversation with the supervisor using his iPhone. The conversation was recorded without the supervisor’s knowledge or consent.

As it so happens, during that meeting, the employee was terminated and he later filed a lawsuit for wrongful termination. During the course of the lawsuit, the employer learned about the recording and reported the former employee’s conduct to the State. The state subsequently filed charges against the former employee. The former employee was prosecuted for violating Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, which makes it a felony for a person to intentionally record another person’s oral communications without the other person’s consent.

Impact on Pennsylvania Employers

In the Whole Foods Market decision, the NLRB acknowledged that certain states have laws prohibiting the recording of another person without his or her consent. In recognizing this, the NLRB conceded that employer policies consistent with such laws would be lawful – provided that those policies were narrowly tailored and specifically referenced the relevant state law.

Pennsylvania employers that currently have a policy banning workplace recordings (or who are considering prohibiting unauthorized workplace recordings), should ensure that any policy they have (or create) is narrowly tailored and that it set forth the specific bases for this policy – noting not only privacy and confidentiality concerns (among others), but also specifically referencing the Pennsylvania Wiretapping Act and any other Pennsylvania statute that prohibits nonconsensual recordings.