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Best Business Practices: Get Consents for Recording All Employee Zoom/Teleconferences

By John DiGiacomo

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.

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