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Secretly recording co-workers: A firing offense?

by on
in Employment Law,Firing,Human Resources

Q. Some employees discovered that a co-worker has been secretly recording conversations with them and a supervisor. They’re complaining about the invasion of privacy. The company president’s first reaction was to have the employee arrested, but I’m not sure he broke any laws. Our policies prohibit general harassment, but do not specifically address clandestine recordings. Can we discipline this employee? Should we contact police? — N.V., Missouri

A.
Wiretap laws vary from state to state. But under the federal wiretap laws, as long as one employee to the conversation consents to the recording (in your case, the employee actually doing the recording), then it is probably legal.

Nevertheless, it is bad policy to permit employees to surreptitiously record conversations with co-workers and supervisors. You are totally within your discretion to discipline this employee if you so choose. While you could go so far as to terminate, I would make it clear to this employee, in writing, that this is a serious offense and that the next time he is caught recording, he will be terminated. 

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{ 2 comments… read them below or add one }

steffel bucks November 14, 2012 at 3:38 pm

i was firedfrom my job today for recording cell phone conversations between myself and other co- workers. my reason for doing this is because i was facing alot of harrasment from the manager and one other co-worker. only one person knew of the recording, but no one has ever heard the recording. when i was fired, nobody didnt ask to listen to the recording, so they dont know if i have prove of the recording or not. are they in the wrong?

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Bobby Hawk April 3, 2012 at 5:14 am

First I am not providing legal service nor council with this answer its simply a review to bring up some possibilities for consideration, strictly as a non-legal opinion.

The real answer to this question is it depends.
Is the conversation being recorded phone conversation or verbal conversation? Even with those two distinctions there are further considerations, such as where did the conversations take place and what is the normal policy concerning recording of employees both verbally and visually (video).

The line of distinction most likely will fall on the intended privacy of the conversation and where that conversation took place. An open area where the conversation can be overheard is often considered fair game for recording, as it was meant for all to hear and not meant to be private.

A conversation which takes place behind closed doors, in Human Resources, is obviously not intended to be public and is therefore covered under privacy. So to a conversation which takes place over a private cell phone in an enclosed or secluded area that is not shared by others. Even more a private land line. Company phones are considered company property and most are considered recordable by the company if the proper warning is provided for states requiring all party consent. A few states (about 10) have all party consent laws concerning recording.

The company might have issues addressed in its bylaws concerning the recording of conversations which may be upheld in a court of law as the bylaws of a corporation could be considered legal and binding… if. That if makes a huge difference. The if covers the fact that an employee has signed an agreement to consent to the bylaws or employee rules, which were advised to them.

The actual answer is it all depends and only a local attorney who is well versed in these matters can answer the question. It depends heavily upon intent of the conversation being recorded and the person recording the conversation. It depends on if the person carrying on the conversation, might normally assume that their conversation would be private or public. In many of todays open office environments for example, it could be concluded that conversations are easily overheard and are therefore meant to be public. Again it depends.

Therefore before taking action against an employee recording conversations, the business should consider consulting an attorney. What is even more important is to discover why and employee thinks they need to be recording conversations. There might be justified reasoning behind the recording of conversations which may lead to larger employment issues, such as harassment or discrimination. At any rate legal counsel (which I am not claiming to be or provide) needs to be involved prior to taking any action.

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