Last week, the Ninth Circuit upheld Oregon’s conversational privacy statute as constitutional, finding that Oregonians have an interest in knowing when in-person conversations are recorded and that these recordings require notice. In workplaces throughout our state, where nearly every employee carries a personal phone with a recording app, this restriction limits surreptitious recordings and affirms the right to know when a conversation may be permanently memorialized. These types of recordings have found their way into a variety of different employment settings that span from individual performance management to labor relations discussions.
Project Veritas, a media organization that focuses primarily on undercover journalism, brought this action seeking a declaration that Oregon’s conversational privacy statute (ORS 165.540(1)(c)) was unconstitutional. In short, Project Veritas planned to violate Oregon’s statute (a violation is a misdemeanor) as part of its investigation tactics and asked the court to find in advance that the statute was unconstitutional. The Ninth Circuit undertook an in-depth constitutional analysis of the statute both on its face and as it applied to Project Veritas. Under both analyses, the Ninth Circuit found it constitutional. While the Ninth Circuit found that the secret recording of in-person conversations is a form of speech protected by the First Amendment, it simultaneously found that Oregon’s statute was content-neutral, meaning that it regulated all secretly recorded in-person speech, regardless of what is being said. Because of the content-neutral conclusion, the court went on to examine what interests were at stake in restricting these secret recordings.
The court explained the difference between conversation participants knowing that an in-person conversation is being recorded or secretly being recorded. While recordings can be deemed reliable as a contemporaneous recording, when later shared (which can be instantaneous by text or email or posting on a social media site), they can also be edited or altered, which changes the reliability of the information. The court also recognized the privacy interests of individuals in choosing not to speak or tailoring their speech when they know it is being recorded. Conversations may be more casual or less constrained in a free-flowing conversation, but notice provides participants with the right to control their speech. Based on how the statute was drafted and the alternative avenues for obtaining the same information, the Ninth Circuit found that the Oregon statute was narrowly tailored to the interest of ensuring individuals know their conversations are being recorded.
While this ruling upholds the requirement of notice to all participants for recorded in-person conversations, it is a limited ruling and it (as well as the statute itself) comes with caveats to be considered. It is important to recognize that the Oregon statute relates only to in-person conversations. It does not apply to the following (that relate to workplaces):
- The recording of telephone calls (which may be recorded as long as one participant consents (ORS 165.540(1)(a))
- A recording using a visible recording device or a video conferencing platform (ORS 165.540(6)(a)) if all others involved know or reasonably should know that a recording is being made of the following:
- A public or semi-public meeting;
- Classes or education activities in a public or private institution; or
- Private meetings or conferences
- The recording of a conversation when law enforcement officers are participants, and they are performing official duties.
In addition to these known exceptions, some open questions remain. For example, in 2021 (during the state-mandated restrictions and the pivot to many remote workspaces), the Oregon legislature expanded the definition of “conversations” to include communications through a video conferencing program (e.g., Zoom, Google Meet, Microsoft Teams). The Ninth Circuit’s ruling addressed only in-person conversations, though, and did not specifically examine whether the prohibition on recording without notice was constitutional for video conferences as well. Moreover, while the court’s ruling found Oregon’s statute both facially constitutional and constitutional as it applied to Project Veritas, there may be other applications of the statute that the court could find are unconstitutional. For example, employees cannot secretly record conversations with their supervisors in the supervisor’s office without notice, but can employees record (without notice) the supervisor yelling profanities in the company parking lot after being cut off by another car? Alternatively, an employee must provide notice before recording another co-worker criticizing a subordinate in a hushed private conversation, but could that same co-worker hold a phone with an open recording app in the company’s morning coffee cart line and take in the conversations of colleagues that included sharing the same information?
This case is factually interesting and the analysis legally complex, though, what is clear from the ruling is that in-person conversations cannot be recorded unless notice is given. As the contours of this ruling are still being considered, and recognizing that both the statute and this ruling may not be widely disseminated, there are some practical considerations for employers:
- Employees (supervisory and non-supervisory) should refrain from secretly recording in-person conversations. Where there may be some circumstances when recording is appropriate, all employees should give clear notice to all participants before recording any conversations.
- Employers should assume for now that the prohibition on secret recordings applies to video conferences as well, so any audio recordings of those meetings should be preceded by a notice to all attendees.
- When starting smaller private meetings (e.g., one-on-one staff evaluations, casual office catchups, meetings discussing confidential information like trade secrets, strategy, or financials), employees can begin the meeting with a gentle reminder that the meeting should not be recorded. If an employee discloses that they are recording a meeting and others do not consent, be prepared to end the meeting or have individuals choose not to participate.
- Employee handbooks and policies may include guidelines on when recordings may be made of conversations and meetings, including notice requirements.
- Despite the notice requirement, employees (supervisors, in particular) should be aware that they may be unknowingly recorded by co-workers and subordinates and should be thoughtful when in conversation.
- If an employer learns of secret recordings, it is unlikely that misdemeanor charges would be filed. Still, the company may remind the staff member of the statute and the corresponding policies.
- If an employer receives or learns of a recording that has been made in apparent violation of the statute, it should tread carefully before relying on the violating recording for any decision-making. There may also be instances in which the employer may want or be required to preserve recordings even if the recording was made in secret. This should be evaluated before deleting or requiring deletion of recordings. Employers might consider seeking legal counsel before determining for what purposes the recording can be used and if it should be deleted.
This is an issue that is still developing with Project Veritas’s attorney vowing to appeal the ruling to the United States Supreme Court. Because the conversational statute is full of exceptions and open to various possible interpretations, if it would be helpful to talk through alternatives or consider suggestions for different paths, please reach out to our employment team. We are ready to lend support. Read our previous blog post for considerations specific to schools.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
