Can we discipline an employee for secretly recording workplace conversations?

Q. Some employees discovered that a co-worker has been secretly recording conversations with them and some supervisors. One of them brought it to our attention after he grew suspicious that the employee was digging for information about some employment decisions we had made. Several employees have complained about the invasion of their 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?

A. Don’t contact police. In Indiana, there is no law against recording conversations, even surreptitiously, as long as at least one party to the conversation consents to the recording. Therefore, since this employee was the one making the recordings, he broke no laws by using a tape recorder.

Nevertheless, the idea of an employee secretly recording conversations is cause for concern on several levels, not the least of which is the damage to general morale. Even though your policy does not specifically forbid this type of activity, it would not be unreasonable to classify it as a form of harassment in the workplace. Thus, you can discipline him in accordance with company policy.

Of a more immediate concern, however, is the question of why he was taping the conversations in the first place. Typically, employees will engage in clandestine recording when they are trying to “build their cases” either before or after going to an attorney. Has this employee recently been disciplined for other reasons? Has he recently lost some level of status or prestige at work? Regardless of the reason, you should investigate his behavior and use what you find to prepare for possible litigation.

You should also consider adding a specific prohibition in the company handbook on the recording of conversations without the consent of everyone involved.