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Recording Virtual Meetings: Opportunity or Pitfall? It’s all in the Policy.

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.

When are “Independent Contractors” Really “Employees”? The DOL Unveils Proposed New Test

The U.S. Department of Labor (“DOL”), the agency tasked with enforcing the Fair Labor Standards Act, has long applied a six-factor “economic reality” test to distinguish between employees and independent contractors. Today, the DOL unveiled proposed regulations intended to clarify and streamline the existing test into a new 5-factor “economic realities” test

Under the new 5-factor test, the first two factorsthe employer’s control over the work, and the workers’ opportunity for profit and loss – are to be given the most weight. The other factors the DOL will consider are (1) the amount of skill required for the work, (2) the permanence of the working relationship, and (3) the degree in which the work is part of an integrated unit of production. 

If the DOL finalizes these proposed regulations, it may be easier for employers to appropriately classify their workers, and to defend independent contractor classifications. Generally, independent contractors are not entitled to federal employee protections, including overtime pay, sick leave, or other employee benefits. Thus, if an employer misclassifies an employee as an independent contractor, the employer could face significant damages in unpaid wages and back taxes. 

What Can I Do to Protect My Business?: 

  • Recognize that the proposed rule is not yet final.  The public has limited time to comment on the proposed rules, after which a final rule will be published. 
  • Remember that the DOL is only one source of law on who is an independent contractor.  Different tests are used by the state departments of labor and the IRS, for instance.  The tests adopted through common law are also used to determine employment status in certain contexts.  
  • Consider examining existing independent contractor relationships now in light of the new proposed rule.  While the proposed rule is not yet law, assessing your independent contractors’ relationship against it will make it easier to make changes to your practices if necessary.  Using knowledgeable employment counsel for this kind of review will help keep the review privileged and can help you identify potential pitfalls in your current employment/contracting practices.

The DOL Issues Revised Rules to the FFCRA

Hot off the presses! the Department Of Labor just issued revisions to the Families First Coronavirus Response Act (FFCRA).  The FFCRA is the law that temporarily expands the Family Medical Leave Act (FMLA) to provide leave for a number of COVID-19-related reasons.  The Federal Government ultimately pays for the leave through employer tax credits. The FFCRA expires on December 31, 2020.

QUIZ TIME!

The newly revised rule, which will be effective on Wednesday, September 16, answers 4 questions. Do you know the answers? Answers provided below:

  1. Can employees take FFCRA leave if work is not otherwise available to them?
  2. Can employees take FFCRA leave intermittently, or does it require employer approval?
  3. Employers may exclude “health care employees” from taking FFCRA leave. But just who is included in the definition of “health care employee”?
  4. When must an employee provide notice and documentation supporting his need for leave to his employer?

ANSWERS:

  1. No – work must be available. In other words, furloughed employees cannot take FFCRA leave.
  2. Employees must seek employer approval to take intermittent leave.
  3. “Health care providers” are now defined as employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care. This definition is narrower than the ordinary understanding of “health care provider”, which typically includes nurses, physical therapists, pharmacists, and the like.
  4. As soon as practicable: an employee does not need to provide notice and documentation prior to the leave if the need for leave is not foreseeable.

Two Cases Exemplifying the Value of Positive Employee Relations

If you like positive employee relations, you might be interested in two legal developments I saw today.

  • First, an NYC employee alleged that her company’s parental leave was misleading: she claimed the policy appeared to offer more weeks of protected leave than it actually did.
  • Second, the 7th circuit ruled that a gay employee was permitted to sue the Catholic church for hostile work environment, notwithstanding the ministerial exemption, a legal doctrine which, broadly speaking, allows religious employers to hire who they want to perform ministerial duties by barring the application of the US’s anti-discrimination laws against them.

What can employers learn from each of these cases?

One lesson may be HOW you do things in your organization is as important as WHAT you do in your organization. The leave administration practice in the first case may have been “legal,” but there is no doubt it was not received well, and now the company is faced defending a lawsuit — and a class action one at that. Ouch. In the second case, while the church may have been within its rights to terminate this employee, its treatment of him prior to termination was problematic. This case underscores that, at least in the 7th Circuit, the ministerial exception will not give religious employers carte blanche to violate anti-discrimination laws, even if certain hiring/firing provisions are exempted. Bottom line: Even “permissible” actions can create risk if you are not careful in how you deliver them. Treating employees well and mitigating risk means more than just strictly complying with the law.

What other lessons do you see?

How to Save Time While Working Remotely (Harvard Business Review)

While I typically post only about legal news, the below article from Harvard Business Review was so clutch, I couldn’t resist. If I were still running HR at The New York Foundling, I would absolutely share this with my team. Those of you managing people in remote jobs might also want to share.

Harvard Business Review: How to (Actually) Save Time When You’re Working Remotely

New Guidance for Tracking Teleworking Hours

The U.S. Department of Labor has issued guidance regarding employers’ obligations to conduct “reasonable diligence” in tracking teleworking employees’ hours of work. If your company is not tracking remote work time — or you are not sure your company’s tracking efforts are sufficient — there is no time like the present.