Employment Update: COVID-19 Put Employee Policies in the Spotlight

COVID-19 has raised many new issues for employers, including questions related to online meetings, recording policies, and employee monitoring.  We have been pushed into a new age of virtual meetings and working from home. The transition from the workplace to working from home has been an adjustment that most employers could never have foreseen. This different and safer way of working has created new questions for employers on how to legally document conversations with their employees. We have received a lot of questions on whether it is legal to record a video or phone call with an employee, and how to monitor employees who are working remotely.  It has been a strange and tough time but we are here to provide guidance on Wisconsin laws that may affect you with your future endeavors with employees.

Wisconsin’s One-Party Consent Requirement

Wisconsin has a one-party consent requirement when it comes to recording the other party as established in Wisconsin Stat. § 968.3. This means that legally, as long as one of parties who initiated the call or video consented to recording, then it is legal.  It is a felony if neither of the parties consented to a recording of the video or call, the recording was used to commit a crime, or it was somehow an infringement on a citizen’s constitutional right.

All-Party Consent Requirement

It’s important to point out that recording laws vary with each state. So while in Wisconsin only one party needs to consent to the recording, in all-party consent states both parties need to agree and consent to the recording. So if the other party is in a different state, before recording a call or video, make sure to not only check your state’s law, but also the other state’s laws, or inform the other party and ask for their consent.

Permissible in Court

Use of a recording is not permissible in court in all states if neither party consented, but is permissible in one-party consent states if one person consented. The recording can be used in court in all-party consent states if both parties clearly consented. There are exceptions to be careful of, such as if one of the parties is calling from Wisconsin and the other party is in California. Wisconsin is a one-party consent state, and California is an all-party consent state; this means that a the recording is illegal and could not be used in court if needed unless both parties consented.

How this applies to Employment Law in Wisconsin 

Essentially, this means that as long as the employer and employee are both in Wisconsin then it is legal to record. As a word of caution, one-party consent does mean that employees can record employers without their knowledge as well. These recordings by employees are also protected if they were recording to prove any sort of discrimination or any illegal activity; employees are then protected by federal and state anti-retaliation laws as well. Employers should seek legal counsel if they find that they have been secretly recorded by an employee.

No Recording Policies

As an employer, if you are worried about employees recording you, then it is legal to establish no recording policies that are backed by a legitimate justification. Employers should make sure the causes for their no recording policies are known and that the limitations are not too broad. The policy should also not interfere with an employee’s ability to exercise Section 7 NLRA rights, which says that employees can engage in protected coordinated activities.

Monitoring Employees

Employers still have the ability to monitor their employees even while they are working from home. As long as the monitoring or recording is done with the intent of business in mind and can be proven in a court of law, then it is legal to do so according to Wis. Stat. § 885.365. This means that employers can monitor emails, phone calls relating to business, company laptop activity, and even the GPS in company cars. This means that any internet activity done on a company computer even after work hours is legal for employers to monitor. Employees using company cars are subject to GPS systems that monitor how long the car isn’t moving or if it is taken off the intended course. Videotaping in the workplace is also legal if as long as it can be proven that it is for business purposes and not intended to commit a crime  It is illegal to videotape employees in places that demand an extra level of privacy, such as the bathroom or locker rooms.

Policies should be clear, in writing, and contained in any employee handbook.

Takeaways

Employers should research state laws before recording calls or videos or gain consent from the other party involved. If employers decide to implement no recording policies, monitor, or videotape their employees, it should be clearly expressed in the employee handbook to avoid any confusion. COVID-19 has brought in a new era of work, and here at Schloemer we are here to help you navigate it safely.

If you have any questions about this article, please contact the attorneys at Schloemer Law Firm, S.C. at 262-334-3471.

Originally published: August 10, 2020.

 

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Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action.  If you need legal guidance, please contact us at 262-334-3471 or [email protected]