Client Newsletter
Handling Workplace  Paparazzo

A2Z Device Manufacturing has a problem with Woody, one of its assembly line workers. Woody fancies himself an amateur reporter and records conversations in the workplace including: private conversations with co-workers, counseling sessions with his supervisor, and team meetings. 

Woody does not have permission from management or his co-workers to record anything in the workplace. Further, Woody never tells anyone that he is recording their conversations. One day, Woody 'lets it slip' that he has recorded every word of a past discussion and threatens to use those recordings against the individual.

Recently, several employees complained to Allen, the supervisor, about Woody's conduct. The employees believe their privacy is being violated and feel uncomfortable working with Woody. Rather than address the issue, Allen avoided disciplining Woody for performance and behavior issues because he does not want to be caught on 'Candid Camera.'

Allen comes to you, the HR Director, and asks you to "take care of it." How should you handle this issue? 
  1. Add a No Recording in the Workplace policy to your handbook, then fire Woody for violating company policy.
  2. Review existing policies with Woody, such as your Anti-Harassment Policy, Confidentiality and Proprietary Information Policy, as well as your HIPAA and Cell Phone Use Policy, to ensure Woody understands that recording in the workplace may violate these policies and advise Woody that future policy violations may result in disciplinary action.
  3. There is nothing you can do. Employees have every right to record events that occur in the workplace.

Scroll down to find the answer.
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The correct answer is B!


A recent National Labor Relations Board (NLRB) decision ( Whole Foods Market, Inc. ) held that businesses are prohibited from enacting " blanket " policies that forbid employees from recording conversations or taking photographs at work without management ' s permission.

The NLRB found that a " blanket " ban on recording in the workplace could prevent employees from documenting unsafe working conditions or recording statements that show discrimination. In addition, employees could reasonably interpret such anti - recording rules as discouraging employees from engaging in certain types of protected, concerted activity, such as: recording images of protected picketing, documenting unsafe workplace equipment, or publicizing discussions about terms and conditions of employment.

The NLRB could challenge an overly broad blanket policy that prohibits recording in the workplace - even if the employer does not have any union employees. Therefore, employers need to tread with caution when adopting a workplace recording policy.

Anti - recording policies should clearly state the employer ' s legitimate objective and be narrowly tailored to protect a compelling business interest (like the confidentiality of patient information, trade secrets or other proprietary material). These policies should also identify specific times or places to which the ban applies instead of declaring an all - around ban.

However, several states have laws that make nonconsensual recording illegal. An employer that operates in states where nonconsensual recording is illegal should specifically reference those recording laws in its policy and specify that its restrictions on nonconsensual recording are limited to those states.

Finally, before disciplining an employee for violating company policies relating to the recording of conversations or events, employers should conduct a thorough investigation to ensure the employee was not engaging in protected concerted activities. In addition, employers should explain to employees the circumstances under which workplace recording is prohibited and advise employees of the potential consequences for engaging in prohibited conduct. 

HR Directors often face employee drama that outshines the most sensational prime time show. From tales of scandalous acts in the breakroom to workplace conspiracies, HR Directors hear the most outrageous stories or excuses from their employees, and sometimes the investigation reveals an unexpected web of lies. How does an employer sift through the lies to uncover the truth?

Learn how one HR Director found the truth hidden beneath a trusted manager's malicious plot to oust an unwanted employee.

This is not the first time a guest has complained about Chad. In fact, Chad is currently on a Performance Improvement Plan because of past complaints. Serena quickly begins an investigation after this latest negative review.

Serena speaks with Ben, the Escape's manager, about the customer review. Ben took the reservation, however, he denies knowing anything else about this particular guest.

Next, Serena speaks with Chad. Chad informs Serena that Ben went to college with this guest (Theresa) and that they are Facebook friends. In fact, Ben has many posts on his wall from her. Chad also tells Serena that he thinks Ben asked Theresa to post the negative review so that Chad would be fired.

While Serena thinks that Chad's "conspiracy theory" is a little far-fetched, she accesses Ben's work email account to look into it further. There she finds several email chains between Theresa and Ben. In one of the emails, Ben is suggesting language for a negative review that is similar to the one posted by Theresa.

After this discovery, Serena questions Ben about the Facebook posts and emails. Ben claims that his Facebook account was hacked and he did not know anything about the posts from Theresa. With respect to the emails, Ben admits that he might have exchanged a couple of emails with Theresa, but continues to deny knowing Theresa. He also denies suggesting the language for the negative review.

Serena is taken aback by all the information that she has received over the course of the day, but feels that she has gathered enough information to conclude her investigation into the Chad/Ben situation.

She decides that the complaint made against Chad was false, and it will not be held against him.
Ben is not so lucky. Due to Ben's conduct during the investigation, Serena no longer trusts Ben and questions his ability to perform his job as manager with the honesty and integrity that is expected of him. For these reasons, Serena decides to terminate Ben.

Best Practice
Always act with due diligence when conducting an investigation and do not approach any investigation with preconceived notions. Things are not always as they seem in the workplace and even your best manager could have a secret plan to sabotage a subordinate employee. 


Retaliation claims are the "sleeper cells" of employment litigation. Camouflaged as an innocuous act, the retaliation claim typically remains dormant until activated by another, more egregious act. Are you able to successfully identify potential retaliation claims in your workplace? Consider the following ...

Maria has been working for the I Love Food (ILF) company for over 3 years. Over the past month, Maria has noticed that Audrey, the hostess, tends to seat more Hispanics in her section than in those of her coworkers. When Maria questions Audrey about this, Audrey responds, "It has just worked out that way."
Maria does not believe Audrey and calmly mentions her observation to her manager, Steven. The next day, Steven calls Maria into his office and issues a written warning for "not getting along" with her coworkers.

Click on any of the above topics to link to the full article or

Data breaches continue to make big news. One of the latest trends is an increase in ransomware attacks targeted at organizations and businesses like hospitals, police stations and universities.

Data security incidents don't discriminate - they affect all industries. Every company should be constantly focused on preventing, detecting, and having the right capabilities in place to respond to data security incidents. Accepting that breaches are inevitable doesn't mean it's not worth trying to stop them. 

The 2nd annual BakerHostetler Data Security Incident Response Report analyzed data from more than 300 incidents on which the national law firm advised in 2015. The report looks at causes of incidents, industries most affected, and what happens after a security incident is detected - from containment, to notification, to regulatory investigations and even lawsuits. 

The sectors most frequently affected by cyber security incidents in 2015 were healthcare, financial services, retail and education.


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