With recording devices becoming increasingly common (and concealable), more employees than ever are recording conversations with bosses and coworkers in order to capture misconduct that would otherwise be impossible to prove.
The question we often get is, “Is it legal for me to record conversations in the workplace without permission?”
The correct answer depends heavily on the specific circumstances of the recording. And you don’t want to guess wrong, either. Many states make it a felony to illegally record others without their permission. But it’s often illegal only if the people being recorded without their knowledge had a “reasonable expectation of privacy” in the conversations you recorded.
How does this shake out? Some examples may help:
- Employee A records Employee B in a crowded restaurant, where Employee B is talking so loud that people sitting around him can easily hear everything he is saying. This recording is probably legal, because Employee B could not reasonably claim he believed the conversation would be private.
- Employee A records her boss in a group meeting in a conference room, where the boss is using racial slurs in front of the entire group. This recording is also probably legal, because, based on the information, the boss did not say he expected the comments to be confidential, and because there were multiple people present. Some courts have said that there is no automatic right to privacy concerning conversations in the workplace. Finally, one can say a boss who freely uses racial slurs in group meetings could not possibly expect the comments to be treated as confidential.
- Employee A records her boss in a meeting in a small office, where the boss has (a) made a point of closing the door, (b) has excluded others from participating, (c) has told Employee A the meeting is highly confidential, (d) has asked Employee to confirm he is not recording the discussion, and (e) reveals secret company plans. Recording this conversation, as you likely guessed, is probably illegal.
So whether recording others in the workplace is legal or illegal, as we say, depends heavily on the facts. The greater the number of steps that have been taken to make a conversation confidential, then the greater the likelihood that recording it is unlawful. On the other hand, some courts have held that there is no reasonable expectation of privacy where the recording takes place in a meeting of multiple people, in a large room or even outdoors, or where the employee has placed the recording device in plain view. Some courts have said that there is also no reason or expectation of privacy in phone calls because, in most cases, the participants do not ask if anyone else is listening.
So the correct answer will depend on a cluster of factors – where the conversation took place, the number of people present, whether steps were taken to close doors or to otherwise make the meeting confidential, whether anyone declared the meeting confidential, whether there were questions about whether anyone was recording the meeting, and the subject matter.
if You Have Questions About Recording Workplace Conversations, Call Us First. The Details Matter.
If you plan to record a meeting or conversation, whether in person or remotely, please feel free to contact us for a free consultation. We can provide guidance that might help you make a decision. It’s important, because as we say, most states criminalize the interception (recording) of conversations without the consent of one or more persons to the conversation if those being recorded have a reasonable expectation of privacy. Call us at 800-663-7999. All our initial consultations are completely free.
Categories: Recording Workplace Conversations
Jim Garrity, Esq. - Employee Rights Lawyer 
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