Due to rapid fire technology and innovations, I have been asked multiple times over the years if employees have the right to record, openly or secretly, conversations at the workplace. This is true whether the employee is disgruntled, the employee wants to catch the employer doing or saying something inappropriate, the employee is simply antagonistic or the employee is trying to cover his or her butt for some reason.
There are numerous reasons as to why an employee may elect to record something - it may save his or her job by providing background evidence in an employment situation; it might help the employee state a case in an unemployment benefits claim; it may give credibility to a harassment or discrimination claim which could result in a huge payout and finally, recordings have been used as evidence in whistleblower claims. The impact of these recordings could have significant financial implications to the employer.
Is it legal?
That answer is the ever confusing “it depends”. There are federal and state laws which place restrictions on wiretapping and eavesdropping, usually in situations where one party listens in on the conversations of others without their knowledge.
From a federal law perspective, the ability to secretly record a conversation initially turns on whether or not there is a reasonable expectation of privacy. If there is no expectation of privacy to the conversation, any party to the communication is able to record the conversation.
The vast majority of the states, (including Indiana, Iowa, Minnesota, and Wisconsin), are considered “one-party consent” states where individuals may legally record a conversation to which they are a party so long as one of the parties to the communication consents to the recording. This “one-party consent” rule is a bit disingenuous because if I am talking with you on the phone, I can hit the record button without ever telling you or asking for your consent since I already “consented” to the recording by hitting the record button. That also means that the employee legally has the right to record any conversation at any time, including in the general workplace or at more sensitive situations such as disciplinary meetings and reviews.
The remaining states (including Illinois and Michigan) generally prohibit individuals from recording conversations unless all parties to the communication consent to the recording. These states are typically referred to as “all-party consent” states.
So what can an employer do?
In Illinois and Michigan, it is easy to handle since employers must consent to any recording in order for the recording to be admissible as evidence unless the conversation being recorded takes place in public or in a manner in which the parties have no reasonable expectation of privacy. Besides such non-consensual recordings being inadmissible in a legal proceeding and there are often civil and criminal penalties to individuals for such acts committed.
In the majority of states, to combat this problem, employers have inserted (or should insert) written policies into employee handbooks that expressly forbid these recordings. A written company policy should trump state law as it pertains to actions or conduct at the workplace. In addition, incorporating disciplinary action into the written policy for any said violation is a permissible and effective way to deter employees from recording conversations without their employer’s knowledge. If written properly, repeated or egregious violations could result in termination on non-discriminatory grounds.
Of course the courts and the EEOC want to chime in on the topic. True to form, the EEOC insists that an employee should be able to video or record no matter what the employer’s policy is if the recording was done in order to document or investigate discrimination or harassment. The circuit courts are split on the matter but of relevance to us is that the Seventh Circuit has held that employers can take disciplinary action against employees for secretly recording conversations even if the employee claims the recording was done to reveal discriminatory treatment by the employer. See Argyropoulos v. City of Alton, 539 F.3d 724, 733-734 (7th Cir. 2008).
Despite the position of the EEOC, current prevailing federal law and state law permits employers to ban recordings in the workplace. Please remember that in order to have such a restriction in place, it is essential to have a written policy on the subject matter and it must be disclosed to all employees, ideally within an employee handbook.