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With cell phones and listening devices now a part of everyday life, it’s becoming increasingly challenging for employers, especially HR, to manage situations where employees record conversations at work, from casual talks with managers to formal disciplinary meetings. The following guide outlines what HR professionals should know about when recording is allowed and when it’s not.
The first question to ask is whether the employee can have a cell phone or recording device at work. Under the 2023 Stericycle decision by the National Labor Relations Board (NLRB), it overturned the Boeing case approach of workplace rules. In 2020 the National Labor Relations Board ruled in the Cott Beverages decision that a company policy that prohibits employees from possessing non-company issued cell phones and other personal items, such as purses, medications, and music devices, on the manufacturing floor or at their work stations in order to ensure worker safety and the integrity of its production process was a valid rule.
Cott Beverages did not ban employees from storing their cellphones in lockers or using their phones in non-working areas such as break rooms and outside actual working time. The NLRB weighed whether the employer’s legitimate business interests outweigh any potential infringement on employee rights and ruled in this case it did not. However, if the company tried a complete ban, it likely would not survive an NLRB challenge even at that time.
However, the Biden era NLRB, created a more restrictive standard in the 2023 Stericycle Inc. case. Under the new standard, the NLRB would carefully consider both the potential impact of work rules on employees and the interests that employers articulate in support of their rules and require employers to narrowly tailor their rules to serve those interests. The Cott Beverages policy would likely not have been considered in violation of the NLRA under this new approach. Until the NLRB has a quorum, the 2023 Stericycle Inc. case is the law.
As for the NLRB approach to recordings in the workplace, the Board has protected employees who secretly record conversations when the employees are “acting in concert for their mutual aid and protection,” when:
- The employee is gathering evidence of unlawful conduct, such as harassment, discrimination, or interference with labor rights;
- The recording is part of a broader effort to address or publicize workplace conditions; or
- The employee is recording conversations about terms and conditions of employment.
- The NLRB has upheld disciplinary actions where employees are not acting in concert for their mutual aid and protection or the employer has an “overriding interest” to restrict the recording, for example:
- The recording violates clearly communicated and lawful company policies.
- The recording invades significant privacy interests such as recording confidential company information or trade secrets or recording private personal information.
Workplace policies can prohibit recording of meetings. Employers may discipline employees for violating rules about recording, especially where confidentiality is at issue. However, HR should consult with their attorney before walking down that path. Further, if the conversation relates to protected activity under the NLRA, employers must approach discipline with caution so consult the attorney in that case as well.
On the other hand, on June 25, 2025, William B. Cowen, the Acting General Counsel of the National Labor Relations Board (“NLRB” or “Board”), issued GC Memorandum 25-07 writing that if an employer or union surreptitiously records collective bargaining negotiations, they automatically violate the NLRA. Cowen asserts that the basis for banning secret recordings is necessary to prevent employers and unions from creating a “culture of suspicion and fear,” where people may think their every word could be used against them, which ultimately may stifle otherwise free, productive, and collaborative dialogue.
As for state laws for recording conversations, it depends on the state. There are two-party states such as California that require both parties consent or all-party consent, or it could be a criminal violation of the law. Under a one-party state like Ohio, the law allows recordings if just one person in the conversation consents.
Michigan is arguably a hybrid. Under Michigan law, a person can record their own conversations without obtaining the consent of all other participants (called the “participant exception” to the eavesdropping statute). Only the participant themself may record their own conversations with their own consent. Recording a third party while not a participant of the conversation will violate Michigan law.
To boil it down, if the employee is a participant in the conversation, they can record their conversation with their supervisor or HR. The Supervisor and/or HR can (and should) state that they do not want to be recorded and shut down the conversation.
Employers should review policies for having a recording device at work but note that once off the floor or sensitive area, an employee may retrieve their phone depending on the conversation and state law may apply. Managers should be trained in these issues, otherwise they can walk into a liability situation that impacts the employer.
By Anthony Kaylin, courtesy of SBAM-approved partner, ASE.
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