The “new norm” has replaced in-person meetings with video-conferencing through WebEx, Skype, Google Meet, Zoom and other similar platforms. The ease of recording virtual meetings brings new opportunities for business: for instance, meetings are now more accessible for remote or time-shifting workers; and recordings can now serve in place of copious (and often incomplete or inaccurate) in-person note-taking.
But it also creates new risk: for instance, the more copies of sensitive or confidential information there are, the greater the increased risk for misappropriation of trade secrets and confidential information becomes. And, employees who are permitted to record meetings without the knowledge of their employers could later use those recordings against the employer in a lawsuit.
For these and other reasons, business owners and HR professionals would be wise to consider the unique risks that recorded meetings might have for their workplace, and to craft and communicate appropriate expectations surrounding recordings. Consistently crafted and followed practices in this area may not only prevent undesirable employee conduct, but could strengthen an employer’s litigation position – whether it is better defending litigation involving “he said she said” allegations, or helping an employer establish that it took “reasonable measures” to protect its trade secrets.
Every company’s decision regarding whether to permit recording, by whom, under what circumstances, how the recordings are to be stored, and who will have access to them, will be different depending on company culture, your company’s employment-related risk concerns, meeting content, and likely meeting participants. As you craft your company policy on recording company meetings, here are several unusual and overlooked principles/best practices to keep in mind:
Consider a Blanket No Recording Policy
Some employers wary of surreptitious employee recordings or protective of their employees’ privacy wish to consider a no-recording policy for their workplace. Is one legal? Maybe. It is generally lawful for your business to have a facially neutral no-recording policy. Any policy has to be weighed to determine the potential infringement on employees’ rights to engage in collective concerted activity and the business’s needs. Although the determination is fairly fact-specific, the National Labor Relations Board’s general counsel observed that a neutral no-recording policy “may [in fact] promote Section 7 activity by encouraging open discussion and exchange of ideas.” (NLRB GC Memo 18-04).
Consider that Today’s Recordings May be Tomorrow’s Discovery Requests. . . .
Once recordings exist, remember that they may become discoverable in state and federal litigation, just like paper or electronic documents. If you permit or require the recording of all meetings, will your company be able to respond adequately or efficiently if required to produce thousands or millions of hours of recorded meetings? Thus, before instituting a policy permitting the recording of internal meetings, consider how and where those recordings will be stored, collected, preserved, and who will have access to them.
It would also be prudent to think through matters of privilege — how will any meetings or parts of meetings arguably privileged and protected from disclosure be identified from the outset — so that those meetings or portions of meetings are not inadvertently turned over in discovery proceedings, potentially years down the line? Simple procedures for assigning saved video files according to attendees and subject matters discussed, could prevent headaches down the road.
. . . . And Become Tomorrow’s Evidence
Evidence of recorded meetings may be a double-edged sword for employers facing a lawsuit. On one hand, permitting employee recordings could mean that your company possesses untenable evidence of improper speech or other offensive conduct undertaken by an employee in meetings (then again, if employees know they are being recorded, it may encourage them to “think twice” before making an off-color joke or comment). On the other hand, a full recording can rebut a secretly recorded snippet of a conversation taken out of context. Consider the risks and benefits of recording meetings through a “future litigation” lens.
Remember Policies Need Implementation
Wherever your company comes down on recording of meetings, remember to include the key stakeholders (HR, operations, Legal, IT, and others) in your discussions and decisions, and think through implementation and accountability together. For instance:
- If the decision is that employees should not record meetings, can IT actually disable employee access to recording options on employees’ Zoom accounts?
- Are there policies in place — that managers are actually following — that limit which platforms should be used for meetings, so that employees cannot “get around” company controls by using alternate platforms?
- How will violations of the policy be discovered and disciplined?
- Are senior level managers prepared to hold their staff accountable to following policies as outlined, or will these policies be enforced unevenly (which can lead to disparate treatment claims among other legal problems)?
- And, are your other workplace policies that potentially address digital recordings — social media policies, protection of trade secret policies, IT policies and union organizing policies — aligned with your goals?
Savvy business owners would be well-served to consider these and other implementation hurdles before unleashing a half-baked policy. In other words, think twice, record once.
If you have any questions about this article, or would like to discuss your plans for updating your policies to protect your business, please contact us at HRlawyers@wfpclaw.com or visit us at www.wfpclaw.com.