3. Recording the Conversation of Other Parties
The issue at the outset is whether the speakers to a conversation have an expectation of privacy regarding their conversation.
Thus, an employee may not be prohibited from surreptitiously recording a conversation between and among other employees taking place in a public space, such as around the water cooler, where arguably, participants would reasonably not have an expectation of privacy. More problematic is where employees are engaged in a discussion with managers behind closed doors, where arguably, an expectation of privacy exists.
In this instance, both state and Federal law impose some restrictions.
The right of an employee to record conversations overheard in the workplace, or an employer’s right to record the phone conversations of employees where, arguably, the participants have an expectation of privacy is, as previously noted, dependent on state law.
Thirty-eight states, including New York and New Jersey, require that at least one party to a conversation must expressly consent to the conversation’s being recorded. However, in one-party consent states, it is universally the case that the one party giving consent can also be the very person recording the conversation.
Twelve states, including California and Florida, on the other hand, require that all parties to a conversation consent to its being recorded. Where the recording of a telephone conversation involves parties communicating across state lines, the Federal Rule is that at least one party must consent to the recording of the conversation.
It is almost always the case that one is prohibited from recording a conversation to which the recording party is not a party, unless it can be shown that at least one party to the conversation consented to its being recorded or the conversation is taking place out in the open where the participants, arguably, do not have an expectation of privacy.
4. Recording to obtain Evidence of Wrongdoing
In two-party consent states where all parties must consent to be recorded, employers are generally protected against employees’ engaging in surreptitious recording activity in the work place. In one-party consent states, however, employers are more vulnerable since a party to a conversation can consent to the conversation’s recording.
In response, many employers have promulgated policies prohibiting altogether the surreptitious recording of conversations. Such policies have been effective in discouraging surreptitious recording and, in certain instances, a violation of an anti-recording policy has served as the basis for an employee’s termination.
However, where employees claim that surreptitious recording is intended to document discriminatory or harassing activity, such recordings have been allowed in by some courts as evidence of the illegal activity and employees have been afforded protections against retaliation, such as termination.
There is, however, no overarching consensus among the courts as to how this situation should be addressed.
What is clear, however, is that managers should always be careful in their conversations with employees and that caution should be especially exercised with respect to known disgruntled employees and/or employees subject to discipline, including termination.