It’s almost impossible these days to go through life without a smartphone, and employees in the workplace are no exception. Even in cases where they have a work issued cell phone, the ubiquitous nature of one’s personal phone causes some tension between employers and their employees when used in the workspace. Here is a look at some of the major issues faced by employees using their phones at work and what the legal precedent is about these types of cases.
One major complaint by employers about the use of smartphones at work is the camera feature—it is so easy to take a picture without being seen. No flash, and it is so common to see a phone in your coworkers hands that anyone could easily take a quick photograph (or video) without anyone else being any the wiser. While employers may not like it, the National Labor Relations Act protects workers’ rights to document unfair or unsafe working conditions. When Whole Foods Market Group banned their employees from taking photo or video at the workplace, they were found to be in violation of the act, even if it had not been their original intent.
Also covered under the NLRA is the workers’ rights as well to record conversations between themselves and other employees, or with supervisors. This can easily be done with cell phones, and can also provide valuable evidence towards a case on discrimination or harassment, as well as other types of workplace violations. Some issues come into play when we consider the wiretap statutes, which were set in place before everyone had a means to subtly record anything they saw or heard at any time of day.
In wiretap statues both in the US and in New Jersey, at least one individual in a conversation must consent to the conversation being recorded. So if you record the conversation of two co-workers while lurking outside the breakroom door and they are unaware of your presence, this is not protected. But if you and a supervisor are discussing a pay increase and you have a phone in your pocket recording the whole conversation, that would presumably be covered under ‘one-party consent’ since you yourself were indeed an interlocutor in the conversation. These two examples are true in most states, but not all. Some have laws requiring ‘two-party consent’, which should possibly be termed instead ‘all party’, since each person being recorded would need to give their permission for it to happen.
The National Labor Relations Board is clear on your rights in these types of situations, expressly with those that have to do with your rights as an employee to record your employer. For more information about how I, David Kaplan, can help protect workers’ rights like these, give me a call today at 973-426-0021. This is especially important if you are currently engaged in a dispute like this with your employer and need professional legal assistance to win back your rights.