In today's increasingly complex workplace, our firm has noticed a growing number of employees who have disputes with their employers reaching out with discussions concerning their creation of audio recordings as a way to document conversations or actions that occur at work. But recording a work conversation offers far more complexities than employees often appreciate. An employee should assess whether it is a good idea to do so, and more importantly, is it even legal? This article analyzes some of the issues associated with such recording.
Two-Party vs. One-Party Consent States
The legality of recording audio conversations, particularly in an employment context, is primarily governed by state law, though federal laws may also apply in some circumstances, such as the Federal Wiretap Act, the Electronic Communications Privacy Act (ECPA), and the National Labor Relations Act (NLRA). These state laws generally fall into two categories: one-party consent and two-party consent.
- One-party consent states: In these states, only one party to the conversation needs to give consent for the recording to be legal. This means that as long as an individual, including an employee, is part of the conversation, they generally don't need permission from the other party to record the discussion. This does not mean, however, that an individual in these states can leave a recording device running unattended, allowing it to capture conversations unbeknownst to the other participants.
- Two-party consent states: In contrast, these states require both parties involved in the conversation to give their consent for the recording to be legal. As a result, employees subject to two-party consent laws are prohibited from recording conversations without the knowledge or approval of all participants.
Company Policies and Employee Handbooks
While the law is an essential consideration, workplace policies and procedures also play a significant role in determining whether an employee can or should record audio during a work-related conversation.
Although there have been some successful challenges imposed to date, an employer may establish policies that prohibit audio or video recordings or restrict the use of electronic devices within the workplace, including prohibiting such recordings without the consent of others. These policies are often designed to protect confidential company information and prevent the misuse of recordings. Consequently, an employee considering recording conversations should first review company's policies, which may be captured in an employee handbook or manual, or elsewhere. Even in states where one-party consent is permitted for recording, an employer can still terminate an employee for violating company policies – even if that employee is recording for what they believe to be a legitimate purpose, such as to document discrimination or illegal activity.
Recording meetings that involve sensitive or confidential information about clients, financial data, or company operations could also lead to serious legal consequences for both the employee and the company. Even if an employee's intent is to document unethical conduct or discriminatory behavior in good faith, recording confidential information could potentially expose the employee to legal risks, including breach of contract or intellectual property violations.
Practical Considerations and At-Will Employment
It's important to remember that, in most cases, employees in the United States are at-will, meaning they can be fired for any reason (as long as it's not illegal, such as retaliation for reporting discrimination or harassment). Recording conversations, even if not explicitly in violation of a written policy, can sometimes be seen as a breach of trust and could form the basis for a company to decide to terminate an employee.
Consult with a Legal Professional
Before pressing the record button, an employee should take the time to fully understand applicable state laws, review their company's policies, and carefully assess the content of the conversation they plan to record for any other legal concerns that could result from doing so, and even absent any concerns regarding the afore-mentioned, analyze any further potential impact on their employment. Any employee considering recording conversations in the workplace should consider consulting with an attorney as well. Given the patchwork of state and federal laws, workplace policies, and the unique circumstances of each case, a legal expert can help an employee to understand rights and responsibilities before making the decision to hit record.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
