Always get employee’s permission to record conversation about complaints

Here’s a reminder for Pennsylvania employers: Before videotaping or otherwise recording an investigation into an employee complaint, get permission to do so. Otherwise, you may face a wiretapping criminal charge.

Recent case: Monique claimed she experienced retaliation for complaining about discrimination under Title VII. She added a wiretap claim under Pennsylvania’s Wiretapping and Electronic Surveillance Control Act. She alleged that a private conversation between herself and one of the executives she worked for was recorded without her permission.

The federal court dismissed her retaliation claim, but said she had an arguable wiretap claim that she can file in state court. (Pacheco v. Pocono Medical Center, MD PA, 2017)

Final note: Pennsylvania law makes it a felony to record a conversation without permission, including conversations recorded using a smartphone app.

In another recent Pennsylvania case, an employee used his iPhone’s “voice notes” app to record a private conversation with his boss. This came out during a subsequent employment lawsuit the man filed against his former employer after he was fired. The employer complained to the local district attorney, who filed criminal charges. The Superior Court, on appeal, concluded that using the app could constitute an illegal wiretap under the law. The same would be true if it were the employer recording an internal investigation with a digital tape recorder or smartphone app.

Advice: Always get everyone’s permission, preferably in writing or directly on the recording.