Remote working complicates privacy expectations

Recently, a CEO of a certain furniture company went viral after telling her employees, on a recorded videocall, to “leave Pity City” regarding their bonuses being cancelled. While the video may leave you scratching your head, it may also leave employers wondering about the legality of recording video or telephone calls in the workplace.

What does the law say?

Like a lot of employment law questions, there is a legal answer and a best practice answer to this question. Legally, most states in the Great Lakes region (Ohio, Indiana, Michigan, and Wisconsin) require only one party’s consent to record a communication. In Illinois, both parties must consent to the call being recorded. And in Wisconsin, this process is governed by section 968.31 of the Wisconsin Statutes. Under this section, you may legally record a conversation if (1) you are a party to the conversation, or (2) with prior consent of the parties involved.

Rights to privacy may complicate what, at first blush, appears to be a simple rule, however. Wisconsin’s Right to Privacy statute (Section 995.50) doesn’t specifically refer to videotaping employees, but it does prohibit an invasion of privacy. This includes an intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private. Limiting a right to privacy to, well, private places, has often insulated employers from liability under the Right to Privacy statute because workplaces are usually not private places.