Can I Secretly Record a Conversation at Work?

It could land you in jail, so here's what you need to consider first

Business people having a meeting at round table
Getty Images/OJO
In light of the arrest of a South Carolina government employee for tape recording a conversation between co-workers, I thought I'd discuss a question I'm asked all the time in my law practice: Can I record a conversation with my employer?

Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. The employee in South Carolina faces up to five years in prison and a $5,000 fine. My advice is almost always: When in doubt, don't.
Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer.

Here's what you need to know about recording conversations at work:

One-party consent: In most states, as long as you're a participant in the conversation, you can record at will. South Carolina is one of these states, but the employee who was arrested taped a conversation between other employees, not herself. That's not allowed, even in one-party consent states

All-party consent: Twelve states, California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, require all parties to the conversation to consent to being taped. Hawaii, a one-party consent state, requires all-party consent if the device is installed in a private place. A Florida government employee was arrested earlier this year for giving a reporter a tape recording of a conversation she had with a supervisor. These laws are sometimes referred to as "two-party consent" laws, but if there are three people in the conversation, all three must consent. For a detailed state-by-state survey of workplace surveillance laws, SHRM has a very thorough (89-page) document that can give you more details on your state law. The Digital Media Law Project has another handy state-by-state resource here.

Expectation of privacy: You can almost always record conversations in public areas, because the courts say there's no "expectation of privacy" in those places. Whether or not you are a party to the conversation, if it's out there in public, you may be allowed to tape it. Here's where it gets tricky. Many courts have held that there's little or no expectation of privacy in the workplace. There are cases saying, for instance, that a party to a conference call has no expectation of privacy.

As an example, cases in my home state of Florida on the expectation of privacy at work say things like: "Society does not recognize an absolute right of privacy in a party's office or place of business." "[A]lthough defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect." "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office."

The problem I have with relying on cases like these to tape at work is the use of weasel-words like "necessarily" and "absolute" and "reasonable." These cases are very fact-specific and that means a court could still find that your boss or coworker had an expectation of privacy. If you get it wrong, you can end up in jail. That Florida employee who was arrested for taping in a public building should give you pause about relying on these "no expectation of privacy" cases too heavily.

Retaliation: If you record a conversation to document illegal discrimination or illegal harassment (we're talking harassment or discrimination based on race, age, sex, religion, national origin, disability, pregnancy, or other protected category, not bullying), then you may or may not be protected against retaliation by your employer. The courts have split on this issue. Depending on your state, your employer may be allowed to fire you for recording a conversation at work.

To summarize, you can probably tape a conversation at work that you're part of as long as you live in one of the 38 one-party consent states. You can also possibly tape a conversation that's in a public area (lobby, office or conference room with doors open, stairwell). You can maybe tape a conversation in the office behind closed doors. If you get it wrong, you're in big trouble, so be careful.

My best recommendation in all-party consent states continues to be, when in doubt, pull out your recorder and turn it on. Say, on the recording, "You don't mind if I tape this do you?" If the other person or people say they don't mind, keep recording. If anyone objects, turn it off. Pull out a pad of paper and a pen and take good notes instead. No potential case against your employer is worth risking jail time.

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Joanie Brown

Recently I quit my job because I found a small cassette that he was recording me. I took it to the police and they advised me to speak w/ the owners. I spoke with the owners and they were very supportive of me in the beginning but when the manager came back from his vacation and they talked with him about it they decided it was no big deal. So I quit because this manager has a history of following employees and one of the employees quit last year because of this behavior. Wouldn't this be illegal? The tape was of only me talking and there was 1 conversation where the manager was talking with me about light bulbs. The conversations he recorded were just uncomfortable and I know this wasn't the first time but it was the first time I actually found and heard the tape. The owners let me take the tape when I left........Does anyone else find this odd?

November 19 2015 at 7:26 PM Report abuse rate up rate down Reply
Javier tamayo

Can a coworker or management record my conversation in the office without my consent and then use it against me to get me in trouble or terminated in the state of Texas

November 16 2015 at 6:53 PM Report abuse rate up rate down Reply

I was recently terminated by employer, but prior to my termination, I was advised by my manager whom was my buddy at the time that it was better for me to seek transfer to another department to safe my job because my director was on a mission to terminate me by any means. In an attempt to get my employer attention to state my innocent, I reached out to the company president by telling him that I recorded a conversation between my self and the manager prior to my termination advising me to seek transfer. The truth is that the conversation took place but I lied about recording the conversation. Can I get in trouble for lying that I recorded the conversation when in fact it wasn't? Please advise

January 06 2015 at 8:13 PM Report abuse rate up rate down Reply
1 reply to Dream's comment

So, I assume you're a low-performing employee that the director is trying to fire. Even if that's not the case, your buddy manager tries to give you some helpful advice and then you lie to the president and get your buddy in trouble? Who would want you working at their company?

September 17 2015 at 5:35 PM Report abuse rate up rate down Reply

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