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As anyone in HR or management can tell you, listening to audio of employees’ conversations in the workplace is an exhilarating way spend time.  It’s like listening to daytime soap operas but without drama, intrigue or articulate communication.  That said, there are times when it might make sense to secretly record a conversation without the employee’s knowledge.  Although as a general concept employees should not have an expectation of privacy in the workplace, before pressing record on your cell phone and practicing your best Colombo logic-trap interrogation methods, you will need to understand whether you can do this under your state’s law. 

Generally there are two types of states: two-party consent states and one-party consent states.  In two-party states all people in a conversation need to consent to the conversation being recorded.  In these states you will not be able to tape record phone calls, secretly place microphones around the office or record employee meetings without violating criminal laws.  Currently eleven states require all parties to consent to a recording.  Primary among those states are California, Massachusetts, Florida and Pennsylvania. 

In one-party consent states only one person in the conversation needs to be aware of the recording.  It is in these one-party states where you can press record and practice your Colombo mind games.  Beware though because if you are recording conversations secretly you still need to be one of the people involved in the conversation, unless the parties consent to being recorded.  Placing microphones around the workplace is not equivalent to being a party to the conversation, so you will need to seek consent from the parties to the conversations that recording them is okay.  If that is your plan, you should notify employees and everyone walking onto your property that they may be recorded, whether by sign, message on the phone system, or some other form of communication. 

Finally, even in one-party consent states employers should be cautious when it comes to tape recording union meetings and other expressions of protected activity that might be outside the workplace, as it might lead to allegations of unlawful retaliation. 

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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