One of the “new normals” in our COVID-19 pandemic employment world is the ever more common use of employee teleconferences. This is one of the many innovations that has resulted from a huge increase in remote working and remote workers. As a result, businesses must begin establishing rules, procedures, and protocols for these types of employee teleconferences. Obtaining advice and counsel from experienced business attorneys is essential since remote workers are generally in their private homes and living spaces. The authority that employers have over their own physical workplaces is different from the authority that employers have over physical places where remote employees work. There is a fine line that must be walked.

Still, rules, procedures and protocols must be put in place. Among the many concerns to be addressed are these:

• Cybersecurity and encryption of the teleconference
• Authorization and verification of identity with respect to those participating
• Taking and keeping a record of attendance
• Rules concerning persons physically present with a participant, listening in, but not visible on camera
• Rules with respect to discussions of trade secrets and other confidential information (including confidential client/patient/customer information)
• Appropriate participant attire
• Participant behavior
• Rules with respect to what is/can be shown in the background of a participant’s camera — First and Fourth Amendment issues are potentially implicated
• And much more

This article deals with a specific business requirement: the need to obtain consents from EVERY person involved in employee teleconferencing. Obtaining consent does not need to be complicated, but it needs to be done. A simple method is to include a statement in the invitation email saying something like “Participation in this teleconference constitutes your consent to be recorded via video and audio.” A blanket employee consent can also be obtained by sending out notice and consent forms to all employees and including notices and consents in the Employee Handbook.

Why is this necessary? Because recording a video without consent is a crime in some states. For example, in New York, it is a felony to record a teleconference without the consent of at least one participant. By contrast, In Michigan, recording and disclosing “private conversations” is prohibited by someone not participating and it is unclear whether a participant can record and/or disclose the “private conversation.” There is also the tricky legal question of whether a teleconference with — say — 10 employees is a “private conversation” or a “public conversation.” Certainly, it is a “private” from the employer’s perspective. Further, video conference participants may be located in different states and, as such, different laws might apply.

Obtaining consent from EVERY attendee ensures that the employer is not violating any state law regardless of where the participants may be located at any given time. In addition, employers should also obtain consent for STORAGE of the recordings of teleconferences and provide notice with respect to what uses the employer might put the recording (e.g., employee disciplinary proceedings).

For more information or if you have questions, contact the business lawyers at Revision Legal at 231-714-0100.

Federal Wiretapping Law and the Two-Party Consent Debate

The federal Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2510–2523, prohibits the intentional interception of wire, oral, or electronic communications without consent of at least one party to the communication. This “one-party consent” rule under federal law would appear to permit an employer to record employee teleconferences as long as one participant—including a company representative—consents. However, federal law establishes a floor, not a ceiling; states are free to impose stricter requirements. At least eleven states require the consent of all parties before a communication may be recorded: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, Oregon, Pennsylvania, and Washington. The multi-state nature of remote work creates genuine legal complexity when participants are distributed across different states with conflicting laws.

California’s All-Party Consent Requirement

California Penal Code § 632 prohibits recording a “confidential communication” without the consent of all parties. A communication is “confidential” if any party to the communication has an objectively reasonable expectation that it will not be overheard or recorded. California courts have held that a remote work teleconference among employees who are not informed of potential recording is likely a confidential communication. Violation of § 632 is a criminal misdemeanor and gives rise to a civil cause of action for statutory damages of $5,000 per violation or three times actual damages, whichever is greater. Employers who have workers in California should treat every employee video conference as subject to California’s all-party consent requirement and obtain blanket, advance written consent through the employment agreement or employee handbook.

Structuring a Legally Compliant Consent Framework

Employers should implement a layered consent architecture. First, obtain baseline written consent from all employees acknowledging that their work-related electronic communications may be monitored and recorded, as part of the onboarding process. Second, configure all video conferencing platforms (Zoom, Teams, Google Meet) to display a notification when recording begins, so that meeting-specific consent is also captured. Third, establish a policy specifically addressing video conferences with external parties—clients, contractors, and vendors—who must provide separate consent before being recorded. The platform-level recording notification alone is insufficient in all-party consent states; written, affirmative consent obtained in advance and documented remains the safer practice.

Storage, Retention, and Employee Privacy

Recording consent is only the first layer of compliance. Employers must also address the storage and retention of recordings. Recordings of employee teleconferences may contain sensitive personal information, confidential business information, attorney-client privileged communications, and protected health information if the call involves HR or benefits topics. A retention policy should specify how long recordings are stored, who has access, how recordings are secured, and when they are deleted. Many state privacy laws—including the CCPA and various state data security statutes—impose requirements on the retention and destruction of personal information that apply to video call recordings.

Consult an Employment and Privacy Attorney

The intersection of employment law, privacy law, and telecommunications law makes video conference recording one of the most legally complex compliance challenges for remote-work employers. The business attorneys at Revision Legal can help your organization develop a compliant teleconference recording policy. Contact us at 231-714-0100.