Is it legal to record conversations in the workplace?
Posted September 13, 2016
By Katie Loehrke, PHR, editor, J. J. Keller & Associates
In many matters regarding privacy in the workplace, what may feel like an invasion of privacy to an employee actually is not one. In particular, employees may feel that the conversations they have with other employees or with customers may not be legally recorded, but this simply isn’t the case.
While audio recording is generally allowed, the specifics surrounding recording conversations in the workplace vary by state. Some states are one-party consent states, which means that only one party to the conversation needs to give consent to a recording. The person doing the recording can be the one giving consent, assuming he or she is a party to the conversation. In one-party states, individuals could potentially record a conversation in the workplace without informing the other parties to the conversation, meaning that an employer or even an employee could legally make a secret recording.
All states except for 12 are one-party states. The remaining 12 (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Nevada, Pennsylvania, and Washington) are two-party (also called all-party) consent states. In those states, all parties to the recording must give consent for it to be legal.
These one- and two-party differences apply not only to in-person recordings, but also to telephone conversations. Many employers record customer service calls between employees and customers for quality purposes. When employers have a business reason for recording a call, doing so is generally acceptable, but employees in a one-party state must be notified that the call may be recorded. In a two-party state, customers must also be notified. An employee’s consent to be recorded can be made a condition of employment.
What happens if an employer wants to record a call, and the business is in a one-party state, but the call is placed to someone in a two-party state? The California Supreme Court grappled with this issue after a call was recorded between a business in Georgia, which is a one-party state, and an individual in California, which is a two-party state. The individual in California was not told the conversation was being recorded. The court held that the two-party statute prevails, because the intent was to protect the privacy of California residents.
Employers still make the rules
Plenty of actions are legal without requiring the employer to allow them in the workplace. For instance, individuals have the right to smoke, but employers don’t have to allow them to smoke on company property. Likewise, while employees might have the right to make an audio recording in the workplace, employers do not have to allow recordings, even in one-party consent states.
As such, a company policy could prohibit audio recordings in the workplace. Many organizations also prohibit video recordings or photographs, especially since more and more employees have these capabilities on their cell phones.
It’s important to note, though, that while an employee might be violating his or her employer’s policy by making a recording in the workplace (and could be disciplined up to and including termination), a recording that was legally made could still be admissible in court.
To clarify, it’s not that the employee could sue because he or she was disciplined for making a recording, but the recording could serve as evidence if, for example, it provided proof of some form of illegal discrimination.
The key to remember is this: While employers do not have to allow recordings in the workplace, both employees and employers can legally make audio recordings, though with varying degrees of consent required depending on state law.
About the author:
Katie Loehrke is a certified Professional in Human Resources and an editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit www.jjkeller.com/hr.