Gathering Information: What the Law Says About Recording in the Workplace

It is a universal truth of our society that at the first hint of anything out of the ordinary, someone will pull out their phone and start recording. From mainstream media outlets to platforms like TikTok, YouTube and Instagram, short form video entertains and informs interchangeably. But what happens when the workplace becomes the stage?

The use of audio and video recordings in the workplace is an evolving concern for both employees and employers. Can my employer prohibit me from making recordings on the clock? As an employer can I protect my workplace and brand from recordings taken at my business? Can employers record their employees to prevent theft or document performance? The answer unfortunately is, like most things these days, complicated.

Ohio is a One-Party Consent State

Let’s start with the “general rules”. Ohio Rev. Code § 2933.52 is Ohio's primary wiretapping and eavesdropping statute. It prohibits the interception of wire, oral, or electronic communications, but contains a significant exception: a non-law enforcement person does not violate the statute if they are a party to the communication, or if one of the parties has given prior consent to the recording, so long as the recording is not made for the purpose of committing a criminal offense or to cause harm. This makes Ohio a “one-party consent” state for audio recording purposes.

Similarly, in traditional public areas, you have a First Amendment right to record anything in plain sight. This includes filming police officers performing their duties, government buildings, and people passing by.

Collectively, these laws mean that employees can legally record conversations they have at work with a co-worker, a supervisor or even a customer and can make videos in public areas.

Employers Can Impose “No Recording” Policies

However, the fact that a recording may be lawful under Ohio law does not mean an employee has an unlimited right to record in the workplace. Employers are free to prohibit all kinds of otherwise legal activity, i.e. drinking, swearing, and wearing open-toed shoes.

Under the framework established by Ohio law, employers may lawfully adopt and enforce workplace policies that prohibit or restrict audio and video recordings in the workplace. Employers may do this to protect sensitive information, trade secrets, patient and client privacy (think HIPAA), or to prevent customer harassment.

There is of course an exception: an employee has the right to make a recording to document activities protected by the National Labor Relations Act (NLRA), a federal law protecting employees’ rights to organize and act together. This exception stems from Section 7 of the NLRA, which guarantees the right to engage in “concerted activity for mutual aid and protection.” This means employees have a right to work together to improve their work conditions. Protected recording activity may include documenting unsafe working conditions, recording evidence of inconsistent application of employer rules, capturing images of protected picketing, and preserving evidence for use in administrative or judicial proceedings.

This exception is limited however, and will always turn on whether the recording is being made for the benefit of all employees. Recording a private, personal dispute with your boss is unlikely to be protected by the NLRA.

Employers Can Record the Workplace with Limitations for Privacy

What about the other side of this coin: are employers free to record workers while they work? The rules differ depending on whether you work for the government or a private company and may be limited if the workplace is unionized. Ohio does not have a statute that specifically governs or restricts private employer video surveillance in the workplace. For public employers, Constitutional protections against unreasonable searches and seizures will apply, meaning any surveillance must be reasonable in both inception and scope.

All employers, private and public, generally have the ability to use video surveillance in the workplace, particularly in open or shared workspaces, to monitor employee conduct and prevent theft. Courts have found that employees have limited expectations of privacy in such settings, especially when they have been made aware of surveillance. Video monitoring aimed at documenting work activity rather than private moments tends to be justified by legitimate business interests, such as theft prevention, performance evaluation, and protecting company assets. However, for obvious reasons, surveillance in areas where employees have a reasonable expectation of privacy, such as restrooms or locker rooms, typically violates privacy rights and may be unlawful.

General Takeaways

Employees. Think twice about pulling out your phone at work no matter how funny a moment may be. Employers have a legitimate business interest in providing a private, safe environment for customers and your fellow employees and your recording could get you disciplined. If you want to record a meeting with your supervisor or a conversation with a coworker, the best practice is to get their permission. Even if your employer does not have a written “no recording” policy, most employment in Ohio is “at will” which means employees can be terminated at any time for any lawful reason. One exception is if you are making a recording to document workplace issues that affect all employees, such as safety or security. If you are disciplined for making such a recording, seek legal advice.

Employers. If you want to prohibit workplace audio or video recordings (and this may be a good idea for a variety of reasons) the best practice is to have a written policy either posted or in your employee handbook. However, make sure that any policy excepts conduct protected by the NLRA. If you use cameras to surveil key areas of the workplace, let your employees know they are there and limit cameras to areas where an employee does not have a reasonable expectation of privacy. Consider any obligations to negotiate if the workplace is unionized. Ultimately, the right balance between transparency and privacy keeps workplaces safe, respectful, and productive.

As always, our team is hear to help. If you have questions on these or other workplace policies, our Employment Law team would be happy to assist you.