In January of this year, the Ninth Circuit Court of Appeals issued a decision in Project Veritas v. Schmidt, upholding Oregon’s conversational privacy statute as constitutional. In light of this decision, now is a great time for employers to familiarize themselves with the boundaries of this statute as it relates to workplace recording and surveillance.
Oregon’s Statute
Oregon’s conversational privacy statute (ORS § 165.540) prevents an individual from obtaining or attempting to obtain the whole or any part of a conversation unless “all participants in the conversation are specifically informed that their conversation is being obtained.” ORS § 165.540(1)(c). Notably, Oregon’s statute does not require individuals consent to the recording, but merely that they are informed that a recording will take place. Further, individuals are restricted from using or attempting to use any conversation which was obtained by such prohibited means.
Oregon’s statute does not differentiate between public and private spaces. Accordingly, employers are subject to its requirements in both public and private-facing areas of their workplace. All individuals present in a workspace, whether a customer, client, or employee, are entitled to the same expectation of privacy under the statute.
Project Veritas Case
In Project Veritas v. Schmidt, Project Veritas, a nonprofit media organization that engages in undercover journalism, brought a lawsuit challenging the constitutionality of Oregon’s statute. Specifically, the lawsuit challenged subsection (1)(c) of the statute which prohibits the recording of in-person conversations without the knowledge of all individuals involved.
Initially, the Ninth Circuit Court of Appeals ruled that the statute was unconstitutional. However, upon rehearing en banc (in front of a larger panel of Ninth Circuit Judges), the Court found that the statute was constitutional and did not violate the First Amendment. Accordingly, ORS § 165.540 remains good law and employers are subject to the restrictions set forth within it.
Audio Recording In-Person Conversations
Employers may seek to record oral conversations (i.e., in-person conversations) with or between employees for a number of reasons, such as documentation of discipline or for purposes of conducting general workplace surveillance.
Importantly, Oregon’s statute only prohibits audio recordings of oral conversations. This includes any audio-only recordings or the audio portion of any audiovisual or video recordings. Oregon’s statute does not address video-only recording (which is generally permitted in Oregon in areas where employees should not have an expectation of privacy). Given this context, employers who seek to utilize cameras or other similar equipment in their workplace should ensure that those recording devices do not capture audio — unless they first ensure that all participants are informed that their conversations are being recorded. The best way for an employer to effectively communicate and demonstrate a lack of expectation of privacy in a specific workspace is through a combination of written policy language, training, and signage.
Exceptions
Oregon’s statute carves out several exceptions. For example, one exception to the rule that all participants must be given notice that their conversation is being recorded applies when an individual uses an unconcealed recording device or obtains a recording through a video conferencing program (such as Zoom or Microsoft Teams). In most cases, the restrictions in subsection (1)(c) do not apply. However, for private meetings or conferences, the recording is acceptable “if all others involved knew or reasonably should have known that the recording was being made.” ORS § 165.540(6)(a)(C).
Audio Recording Telephone Conversations
ORS § 165.540(1)(c) restricts an individual from obtaining or attempting to obtain an oral conversation without first providing the required notice. However, this restriction does not apply to telephone conversations which require the consent of at least one participant. ORS § 165.540(1)(a). This means that an individual can legally record their phone call with another party or other parties.
Employer Takeaways
Oregon’s conversational privacy statute remains in effect for the time being, meaning that notice must be given before oral conversations can be recorded in-person. This rule will likely change once again if the United States Supreme Court decides to hear the appeal. However, for now, this case serves as a reminder for Oregon employers of their obligations regarding audio recordings in the workplace and an opportunity to review current practices regarding workplace recording and surveillance.
Missy Oakley is an attorney at Barran Liebman LLP, where she represents employers on a wide range of employment issues. For questions, contact her at 503-276-2122 or moakley@barran.com.
Lex Shvartsmann is a law clerk with Barran Liebman LLP, where she partners with attorneys in client trainings, legal research, and the drafting of employment policies and handbooks.
