Is It Illegal to Record Someone at Work Without Their Knowledge? (What if One Party Consents?)

The need to record a person at work can be for any number of reasons. However, it is important to know if doing so is against any laws or can be punishable. If you find yourself in a situation in which recording someone at work is necessary, understand exactly what you’re allowed to do and what might cause you some trouble.

Is it illegal to record someone at work without their knowledge? The majority of American states allow covert recording, as long as one involved party consents to said recording. For example, if you were to record a conversation between yourself and a coworker, your consent is all that is needed. If you were to record a conversation that you are not involved in and no one consented to the recording, things can get a bit complicated.

There are a few specifics that need explaining in further detail when it comes to recording secretly. Determining which states allow the recording and which are more strict when it comes to privacy is one of the most important. It is also important to know what your employer is legally allowed to do as a result of covert recording. There are numerous court cases surrounding the issue. While the terminology and legalese can get a bit confusing, the following paragraphs can help to break it down.

The Basics

Recording someone at work without their knowledge is something that can get complicated quickly. In order to best understand what is and what is not allowed in the workplace, knowing the laws surrounding the topic is key. Laws differ by location in some cases, but ultimately remain the same for the majority of the United States.

Although “wiretapping” is a term usually used for the listening in and recording of phone conversations, The Federal Wiretap Act extends far beyond this one offense. With the change in technology since this act was developed, there have been updates made to consider a variety of conversations and privacy issues. These conversations include electronic and oral communications and the laws surrounding the use of a device to record those conversations.

The intent behind recording a conversation is unimportant, as the law applies to everyone. Recording a conversation where two coworkers are admitting to a crime is illegal if there is not a consenting party to the recording. For example, if the employees are in a private office and are expected to have no eavesdroppers and no recordings, it is illegal to record the conversation. However, if those employees were discussing their crimes in a place where privacy is not expected, such as the break room, recording them would break no laws.

The only way this type of recording is legal is if there is a court order that states it. Law enforcement can only record conversations if one party consents to the recording. Even a police officer is only allowed to record a conversation he or she is not involved in if there is a court order.

There are also those states that do not allow recording unless all parties are made aware of it. These states includeOpens in a new tab. California, Connecticut, Deleware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. In these states, the Federal Wiretap Act is expanded to include the consent of everyone involved. Despite this, some cases have interpreted the law in their own way.

Vermont has no specific stance on the issue. Oregon differs between electronic communication and in person. Civil cases in Connecticut take the all-party consent side; criminal cases require just one person’s approval. The variety of laws an interpretation can be confusing, but it is still important to know the law in your geographical area so that mistakes can be avoided.

If recording something is imperative, be sure it is done in a public area. Because a public area is not expected to be private, recording any conversation around you is completely legal in every state. It is when there is an expectation of privacy that laws start getting broken.

For the sake of complete understanding, let’s recap. If recording a conversation, it is best to be an involved party. This means you should be speaking in the recording. Check your state laws, as some require that all parties give consent to the recording beforehand. If a conversation is occurring in a public location, recording is legal. In order to record without the consent of any involved party, a court order must be obtained in the form of a warrant.  Specifics should be cleared with a professional before you take any action.

Security Concerns

It can be concerning knowing that it is legal for employees to record without your knowledge. In fact, many companies may fear it would be a security concern. Having said that, how does a company ensure that data is kept as private as it was intended to be? Looking at this from a corporate espionage point of view might help to put things in perspective.

Consider the fact that an employee might be recording information to provide to a competitor. If this is the case, there are legal steps that can be taken prior to the recording so that this kind of espionage can be avoided. By having a lawyer draft a non-disclosure agreement, non-compete, or non-solicit agreement, you can have all employees sign away their right to share information with a competitor. If this is a concern for you, the additional effort it takes to do so is highly recommended.

It is also important to utilize the word “confidential” for everything that is intended to stay behind closed doors. Obviously, confidential information would not be discussed in public where recordings can be made legally. With the non-disclosure agreement, mentioning that topics are confidential will help to remind employees that they have agreed to keep things to themselves. Recording conversations about the topic would then violate that agreement.

It can be difficult to prevent all recording in an office setting, as not allowing employees to do so generally violates the National Labor Relations Act. Only justified situations, such as the aforementioned concern for confidentiality, seem to get past the NLRA guidelines. However, these seem to be based on a case-by-case basis, as a case in Texas was in favor of the employer after the employee violated such a rule.

The case was Mohamad vs. Dallas County Community College DistrictOpens in a new tab. in 2012. Mohamad claimed that his former employer had discriminated against him. He had been fired after refusing to voluntarily leave his position. The court ruled that because of the recording, which violated the no-recording policy instated by the employer, Mohamad was rightfully terminated, despite the fact that racial comments were captured on said audio recording.

A different case ruled quite opposite of the Mohamad vs. Dallas County Community College District case. Whole FoodsOpens in a new tab. attempted to establish a non-recording policy. The case, which was heard in 2015, challenged the NLRA laws that stated that a non-recording policy violated employee rights. It was determined that the NLRA laws would stand, as the language used in Whole Foods’ proposed policy was much too broad.

Other security concerns that arise is if company-owned recording devices such as security cameras get hacked. In order to prevent such an occurrence, it is important to secure your wireless network. You should also secure the footage with a username and password that cannot be guessed. There are also settings within most security camera’s settings that allow encryption. Enabling encryption is a huge part of preventing hackers. Following the necessary preventative measures can help a company’s privacy immensely.

By hiring trusted and thoroughly checked employees, utilizing legal contracts, and being proactive about preventing data hacks, security concerns should not be a big issue for most companies. It is also important to clearly understand what is considered legal and what is illegal when it comes to recording someone at work. Employer and employees alike should know what they are free to do and when their rights have been violated.

Employer vs. Employee

It seems that video surveillance is more prevalent in today’s society. We are in the technological age, and that means that we protect ourselves and our property with all means possible. It is understood that cameras are often consented to when taking a position within a company, but there are lines that are drawn. Does an employer have different rights than the employee?

In truth, there isn’t a difference in recording employees as an employer or recording others as an employee. The laws are applied in the same way – management consents to the recording being done by security cameras just as the employee would consent to record their own conversation. The difference lies in how the non-consenting party might retaliate.

If an employee were to record a person unawares at work, they could be fired if it were to come to light. This is because most states have at-will employees. However, if that recording is used to prove wrongdoing, it is likely that the employee would be allowed to keep his or her jobOpens in a new tab..

If an employer were to record employees without their knowledge, the employee does not have that ability to fire their employer. They could quit, but that is hardly the same thing. A recording might be used to provide proof behind firing an employee. However, the employer must be a defined party. For instance, a manager must know that they are being recorded in order to make the recorded conversation legal.

Sometimes employers have covered their bases by placing a statement in the employee handbook that discusses the company’s right to record conversations in the work building or telephone calls on a company line. When that statement is written in the handbook, there is no defense for the employee wanting to dismiss a recording that they were unaware of.

Even with such a statement in the policies, there are certain activities that an employer is not allowed to record. The obvious ones include video recordings of private areas like changing rooms and bathrooms. Other activities prohibited from being recorded are union events and gatherings. If there are union members in your company’s workforce, it might be best to avoid recording at all.

It is also illegal to record employees taking part in a march or rally anywhere near the company. Even if the rally is occurring across the street from the company and no one steps foot on the property, an employer that records the employees involved can find themselves in trouble.

Since recording at work can ultimately cause the loss of your job, it is suggested that you think long and hard about whether recording is worth it. Consulting a lawyer in your geographic area might help you to determine whether the benefits will outweigh the potential disadvantages. Because of the common small print in an employee handbook, employers do not have the same concern.

If your job is not a concern, recording coworkers that are unaware can cause a lot of turmoil. Look at the situation surrounding Omarosa Manugault Newman, a former White House employee under the Trump administration. It has been made clear that Omarosa has hundreds of recordings of numerous people, which seem to have taken the political world by storm. While she is using the recordings to make a living, your average employee in America would not have such coveted recordings.

Despite the fact that it is not illegal to record someone at work without their knowledge in most American states, it can bring more trouble than it is worth. If there is a reason to record someone unknowingly, such as to capture harassment, discrimination, or embezzling on audio, do the research to determine what you can and cannot do. After researching, you may want to consider the pros and cons of what a recording would do. If something illegal is going on, getting the law involved before mistakes are made is the best route.

Related Questions

How can my company prevent corporate espionage?

Identify possible risks, protect data by using a clear policy, maintain a secure network, monitor employees and have regular background checks, educate employees on proper procedure, and take preemptive action on preventing leaks by former employees.

How do I made my company building more secure?

Use electronic keys for offices and other important rooms, use an alarm system, utilize locking filing cabinets and safes, secure computers to desks, and ensure that all areas are well lit.

Do employees have the right to privacy at work?

In most cases, work emails and phones are not subject to privacy. However, text messages, personal emails, and personal phone calls on a personal phone in a private area are considered conversations that an employee has the right to keep private.

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