The answer depends in part on where you live.
Recently, news broke that several of President Donald Trump’s close confidantes and former employees, including attorney Micheal Cohen and aide Omarosa Manigault Newman, secretly recorded President Trump. These recordings may prove to be critical in the ongoing investigation by Special Prosecutor Robert Mueller — or, in Omarosa’s case, may simply help her to sell more books about her time at the White House.
Either way, the release of these recordings brings up an important question that clients often ask experienced employment attorneys: can you record a conversation at work? In many cases, clients want to be able to record their co-workers, managers or others harassing them or making discriminatory comments. While this is understandable, it may not always be legal to record someone, depending on where you live and where the potential conversation is recorded. Making a mistake about the law in this matter can lead to criminal and civil penalties.
There is no doubt that having your harasser on tape is powerful evidence. Being able to play a recording of your co-workers making racist or sexist comments (for example) will certain go further in proving your case than simply testifying about what they said or did. It can often be helpful to record meetings with human resources to make sure that you have all of the necessary information. In these situations, consulting with a seasoned employment attorney in your state can help you ensure that you are acting in accordance with the law.
The first thing that you need to know is that there are two types of states when it comes to the type of consent that you need to record a conversation: one-party consent and all-party consent. In one-party consent states, only one person involved in the conversation has to consent to recording — and you can be that person if you are participating. In all-party consent states, every person involved in the conversation has to consent to it being recorded. Most states are one-party consent states. Thirteen states, including California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, and Washington, are all-party consent states. If you live in one of those states, you must get the consent of everyone in the conversation to record it. Again, talking with an employment attorney before recording any workplace conversation can help you understand your rights, as well as the law in your state regarding recordings.
The second important factor is whether there is a reasonable expectation of privacy in where you are recording. You can generally record conversations in public areas, because there is no expectation of privacy in public areas — even if you aren’t a party to the conversation. Public areas may include the lobby, a stairwell, or a large open office space with many cubicles. Most courts have held that there is little to no expectation of privacy in the workplace. However, the cases that have made these rulings have relied on very specific facts. As a general rule, you should be very careful when recording in the workplace, and only make a recording if you live in a one-party consent state, have the consent of all parties, and/or are in a public area.
Importantly, if you do record a conversation that demonstrates that you suffered illegal discrimination or harassment, you might be protected from retaliation. Again, the question of whether you can be fired for recording a conversation at work will depend on the facts of your case and where you live. That is why it is important to consult with an experienced employment attorney before recording anything at work.
If you decided that it isn’t worth the risk to record conversations, there are other options. This may include calling someone on speakerphone so that they can “witness” the harassment, or making contemporaneous notes of what happened. You should also be sure to download and print off text messages, emails and social media messages to make sure that they are secured for potential future use.
While you may not be able to legally record a conversation at work, there are other methods of proving your case. At PLBH, we work with our clients to help them build evidence of illegal discrimination, harassment or retaliation. Contact us today at (800) 435-7542 or info@plblaw.com to schedule a free initial consultation.