By David S. Harvey, Esq. | Florida Partner & Business Unit Leader 

Picture a performance meeting between a regional manager and an employee who has missed targets for two quarters. The conversation gets heated, and the manager says a few things he would word differently if he had another chance. Months later, the employee’s attorney produces audio and video of the meeting, recorded on smart glasses the employee wore that day. The manager had no idea he was being recorded.  

AI-enabled smart glasses are bringing this scenario into offices and job sites now, and most employers have not updated their policies to account for them.  

Why Current Recording Policies Fall Short 

Most handbooks were written with cellphones and handheld recorders in mind, and they assume a manager will notice when someone starts recording. Smart glasses (and other “smart apparel”) fall into what I call the eyewear gap. They can capture audio and video and pass it to an AI assistant, yet they look like ordinary prescription frames. If a policy does not mention them, an employee has a reasonable argument that it does not apply, and the company ends up arguing about the policy’s scope when it should be enforcing it. 

The employee may also argue they were “unaware” at the time that the AI in their glasses (or other apparel) was recording or transcribing the events. 

Recording and Consent Laws 

Federal law and 38 states follow a one-party consent rule, which means a conversation can be recorded as long as one participant agrees. That participant can be the person doing the recording, so an employee wearing smart glasses can legally record a meeting the employee is part of in those states without telling anyone.  

The remaining states, roughly a dozen including California, Florida, Illinois, Pennsylvania, and Washington, require everyone in a private conversation to agree before it is recorded. In several of them, recording without that consent is a crime, and the person recorded can also bring a civil suit.

The hardest questions come when a conversation crosses state lines. Many companies have employees in one-party states who join calls with colleagues in all-party states. Which law governs that call? Courts have not answered that consistently, and some have applied the stricter state’s rule to protect the person who was recorded. The safest approach for a multi-state employer is to treat every call that includes someone in an all-party state as an all-party call, and to build its policy around that assumption. 

[No doubt many of you have been on a video call and have seen the notice from the App telling you the call is being recorded.  This creates an “implied” consent because you were aware of the recording AND stayed on the call.  Unfortunately, there is no such warning with smart glasses.] 

Confidential Information and Privilege 

A company that wants to enforce an NDA or protect a trade secret must show it took reasonable steps to keep the information secret. How would you answer that question if an employee could have filmed your manufacturing process from the floor without anyone noticing?  

Many of these devices also send what they capture to outside AI services, so confidential material may end up stored on third-party servers under the vendor’s terms. If the capture

conversation was with company counsel, expect the other side to argue that privilege was waived. This will likely be unsuccessful. But, the company will spend money to defend the allegation.  

Interviews, Investigations, and Discipline Meetings 

In a job interview, a candidate wearing smart glasses could be recording, or could be getting suggested answers from an AI assistant as you ask your questions. Either one affects how much you can rely on what you see in that interview.  

Witnesses in an internal investigation usually speak openly because they expect confidentiality. If one witness records the interview without disclosure and the file gets leaked, other witnesses may become guarded, and the investigation’s findings become harder to defend.  

Customers, Patients, and Other Third Parties 

Employees are not the only people who get recorded. Customers and patients who come through your space never consented, and in health care and financial services, the company has legal duties to protect the privacy of patients/customers.  

Where a device processes faces or voices, biometric privacy laws apply as well. Illinois’s BPA is the best known because it lets individuals sue for statutory damages, but Texas and Washington have their own biometric statutes, and many newer state privacy laws cover biometric data too. 

Recordings in Discovery 

Preservation obligations reach relevant information wherever it is stored. Some employers now issue smart glasses to field technicians and inspectors, and that footage is company

data. Do you have a retention schedule for it? Could you locate it quickly if a lawsuit were filed? A company that cannot answer those questions is potentially exposed to a spoliation dispute.  

The Risks of a Blanket Ban 

Your first reaction may be to ban smart glasses entirely. That approach raises its own legal risks.  

Federal labor law protects employees who act together about working conditions, whether or not there is a formal union, and recording can be part of that protected activity. An employee documenting a safety hazard is one example of recognized protected activities.  

Under the NLRB’s Stericycle standard, a rule that could reasonably discourage protected activity is presumed unlawful unless the employer shows a legitimate and substantial interest that a narrower rule would not serve.  

The ADA also complicates these issues. Some employees (with medical or mental conditions) may rely on these glasses to follow conversations or read documents, and a ban does not relieve the employer of the interactive process when an employee asks to use them as an accommodation. Can the employee use the glasses with the camera and recording turned off? Only in certain parts of the building? Is a different tool available that meets the same need? The employer should work through those questions and document that it did.  

Disciplining an employee who recorded a conversation he believed showed unlawful conduct also invites a retaliation claim, which can sometimes end up stronger than the original complaint.  

Steps to Take Before Year End 

This month, walk your facilities and identify where recording would cause real harm, such as production areas, HR offices, patient spaces, and anywhere employees remove clothes (i.e., locker rooms, bathrooms, nursing areas). That list will be the foundation of a defensible policy. Ask IT whether personal wearables can connect to company Wi-Fi or pair with company systems and block that access if they can.  

This quarter, update your recording policy so it names wearable and AI devices specifically. Tie each restriction to a stated reason and a specific location rather than banning recording everywhere and include language confirming that the policy does not limit employees’ rights under the NLRA. If you have employees in more than one state,

write the policy to the all-party standard. Add a short process for accommodation requests so managers know where to send them and what alternatives they can offer.  

Call your insurance broker. Ask whether your employment practices, cyber, and general liability policies would respond to a wiretap or biometric privacy claim arising from an employee’s personal device. Many policies do not address it or exclude it outright.  

If your company is deploying smart glasses, review the vendor contract for who owns the footage, where it is stored, and whether the vendor uses it to train its AI. Build a retention and deletion schedule for that footage and add it to your litigation hold procedures. Consider posting signs in customer and patient areas explaining where recording is permitted.  

Going forward, show supervisors and HR staff what these devices look like and train them to apply the policy the same way in every case. Uneven enforcement can become evidence in a discrimination claim.  

Policy Updates Alone May Not Be Enough  

Updating a recording policy for wearable devices can look like a simple handbook edit and, in some cases, that may be so. However, an insufficient policy change is where many employers run into trouble. A policy that adds the words “smart glasses” without accounting for consent laws in every state where the company operates, its accommodation obligations, or employees’ rights under federal labor law can leave the same exposure in place. It can also give a plaintiff a written rule to use against the company.  

The issues in this article draw on labor and employment law, trade secret protection, AI governance, and for many employers, health care regulation. A fix in one area can create a problem in another. A broad recording ban may protect confidential information and still run afoul of the NLRA. A strict device rule in a medical office may protect patient privacy and still fail an employee who needs the glasses as an accommodation. Having qualified counsel review the policy before it takes effect is the most reliable way to catch those conflicts.  

At Kelley Kronenberg, I handle these reviews alongside my colleagues in our AI compliance and governance, health law, complex commercial litigation, OSHA, and workers’ compensation divisions, so each area of law that touches the policy is accounted for. If you would like us to review your current policies or help you develop a sound and defensible policy for the future, our team is always glad to help. 

David S. Harvey
Partner and Business Unit Leader, Labor and Employment
Kelley Kronenberg – Tampa, FL.
(813) 223-1697
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