Secret Workplace Recordings Are More Common: Beware

I recently had an out-of-state arbitration case involving an employee who was secretly recording conversations at her workplace. The office had a toxic atmosphere: she wanted to get her colleagues in trouble. She was fired. She faced criminal charges, which were dropped. I upheld the termination.

Meanwhile, an Urbana School District official was caught trying to secretly record a closed-door meeting of the school board. He was fired. He is facing criminal charges.

What can we learn from this?

First, employees have access to cell-phone and related technology that is spy-craft quality. Pens are a common device (costing about $120).

Second, it seems that people tape others to set up some type of reporting or enforcement activity. Back to this point in a second.

Third—and here is the reason for the post— this activity is a crime in all 50 states (it is also a federal crime).

There are two types of secret recording laws. The most common is the one-party consent law. A recording is legal only if one party who is being recorded consents. Other people whose voices are captured do not have to consent. 38 states have this law.

The other 12 have all-party consent.

A recent law review article breaks this down—and it is readable for a general audience.

Rauvin Johl notes:

The rise of smartphones, smart technology, and the internet of things has pushed society incrementally closer to the camera-laden dystopia described in George Orwell’s 1984. But rather than a surveillance network orchestrated by Big Brother, today’s recordings are made by private citizens as well as the government. . . . These devices have placed immense power in the hands of the public, allowing us to record and share everyday miracles, nuisances, and tragedies….

[C]onsent laws were intended to protect privacy and preserve social bonds (emphasis added)….

Johl makes the point that more states are adopting multi-party consent laws. There is a big downside. Consider how witnesses to police brutality record events and make them public. That could be a crime in an all-party consent state. In a one-party consent state, I can ask a bystander for permission to record—that opens the door to capturing not only police brutality but co-workers or supervisors who sexually or racially harass others.

There is no easy way to think about this, except: Be careful about how you record events and conversations. Think, too, about what this means for developing workplace policies and training for employees.

For more, see Rauvin Johl, Reassessing Wiretap and Eavesdropping States: Making One-Party Consent the Default, 12 Harv. L. & Pol’y Rev. 177, 178 (2018), available at http://harvardlpr.com/wp-content/uploads/2018/03/Johl.pdf.