I have people come into my office all the time about sexual harassment, discrimination or other issues who proudly pull out a DVD or tape and say, “I have it all on tape.” I usually jump back about two feet, as if the thing were a cobra (not the kind relating to insurance). That’s because taping someone without their consent is a crime in my state. The tape will probably not be admissible in court, and could well land my client in jail.
I want nothing to do with recordings unless everyone whose voices appear on them consented to be recorded.
That’s not true in every state. The question you need to ask yourself before you secretly record a conversation is whether your state has “one party” or a “two party” consent. One party consent simply means that, if any party to the conversation agrees to be taped, it’s okay. Two-party consent (also called all-party consent) requires every person who participates in the conversation to agree to be taped.
Here’s how these laws apply. In a two-party/all-party consent state, you can’t go into a disciplinary interview with a recorder hidden in your pocket to tape your employer’s sexual harassment or admission that they set you up. In a one-party consent state, as long as you are in the conversation you can tape it. You can’t stand in the shadows and tape a conversation you aren’t participating in to eavesdrop on what is being said. Placing a bug or hidden tape recorder in a room and leaving is always illegal unless there is a court order.
The following states require consent of all parties to a conversation (two party consent) in order for the conversation to be recorded:
California
Connecticut
Delaware
Florida
Connecticut
Delaware
Florida
Illinois (By statute. However, in practice the courts of Illinois allow most individuals and businesses, not law enforcement, to use one party consent.)
Maryland
Massachusetts
Michigan
Montana
New Hampshire
Maryland
Massachusetts
Michigan
Montana
New Hampshire
Pennsylvania
Washington
Washington
States that allow one party to consent are:
Alaska
Arkansas
Colorado
District of Columbia
Arkansas
Colorado
District of Columbia
Georgia
Hawaii
Idaho
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Jersey
Hawaii
Idaho
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
West Virginia
Wisconsin
Wyoming
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
West Virginia
Wisconsin
Wyoming
The federal law on taping, the Electronic Communications Privacy Act, has some exemptions. If a phone line is recorded for customer service, for use as a 911 line, or by court order, then the recording may be allowed. However, there are many suits over these exceptions. (This also means that most employers who tape employee conversations get it wrong, but that’s another post for another time.) Your state law may have some exemptions too, but probably not for you as an employee.
How do you properly tape record a conversation in a two-party consent state? You pull out the recorder, hit the “record” button and say, “You don’t mind if I record this, do you?” If they say they don’t mind, record away. If they do mind, then shut it off and put it away.
People say the darndest things and then deny later, so the temptation to secretly record them is strong. You might want to have a witness come along instead if you’re in a two-party consent state. I know it’s not ideal, but it beats landing in jail.
Hello There,
ReplyDeleteI am in San Francisco, California working in an elementary school. I have discovered that we have Aiphone monitors/speakers in every room. They are old models; the kind that do not have a privacy button. Recently, my boss has been accusing my employees of coming to her and telling her is said "this and that" in meetings. I discovered this was not true. the only other thing I can fathom is that she is listening in on our conversation via the Aiphone communication speakers (w/mics inside) as they cannot be shut off and are controlled by the motherboard in her office. I want to put a stop to this but unsure how to take the next step....any advice? cheers, BK-SF
Since California is an all-party consent state, you might want to talk to an attorney there about this issue. If you can catch her, you might also contact the police.
ReplyDeletewat happens if your in new jersey and someone tapes you without your consent can you do anything about that
DeleteHi Ricky. Since NJ is a one-party consent state, if the person taping you was part of the conversation it was probably legal. You might want to talk to a lawyer there to find out about your rights.
DeleteI believe my boss is recording our security office. My state is a One party consent state. a week ago i discovered a write up... well a verbal writeup issued to a couple of security guards regarding "inappropriate talk" about another officers said military history... now we have not signed a waiver saying we may be recorded in our security office and the supervisor was not party to this conversation due to the fact that he doesnt have any military history... is this legal?
ReplyDeleteHi Secret Squirrel. It seems unlikely that, if nobody who participated in the conversation consented, the taping would be legal. You might want to talk to a lawyer in your state about it. Try http://www.nela.org to locate an employee-side lawyer in your state.
ReplyDeleteThank you Donna, I appreciate the advice. Some of the other officers on the site have learned of this and want to confront the site supervisor about this... Should I stop them?
ReplyDeleteI'd suggest talking to a lawyer in your state about this. I'm not sure why you would want to be involved in stopping someone else, but it's a legal issue specific to your state.
ReplyDeleteDonna, I worked in Alabama. I recorded an office meeting in which I was terminated. I have been denied my unemployment benefits because my employer is claiming that I voluntarily quit. The tape of this conversation will prove that fact and should rendered me my unemployment dues that I am owed. I was definitely in the conversation but its better to be broke looking for a job than in jail... please assist! much appreciated in advance.
ReplyDeleteTodd, I believe Alabama is a one-party consent state, but you should check with an employment lawyer there to be sure.
ReplyDeleteI am a victim with 7 others of being defrauded in a ponzi scheme among other violations. I have been screwed out of $500K and collectively the seven of us were defrauded totalling $2.45 million. We are getting ready to build a case and I wonder if I can bug the office to know what these criminals' next move will be. They have not paid us in 3 months, bc we are bankrupt by $2 million. They know that we are going to do somehting about this. We are all MBA's and professionals and we are MAD. Can we bug the offices here? I know that we can't use the tapes in a court, but can we record and listen? OR is this illegal.
ReplyDeleteSorry tp, but recording someone like that is almost certainly illegal. You might want to double-check with a lawyer in your state, but doing this would probably get you in trouble.
ReplyDeleteI live in VA & Iam having trouble at work with somebody,they put me down & call me names & talks about others to . He has threatened to shoot me & he says he wants to fight . I have four kids & if I hit him I will loose my job . I was wondering if I could get him on a voice recorder.
ReplyDeleteHi furious one. It's possible you can get away with a secret recording of a conversation you're in if you do it in Virginia, but you should check with an attorney there first. Mostly, I'd suggest calling the police if someone is threatening you. You should also report the threats to HR.
ReplyDeleteOne of my supervisors has told several lies about me that have put me on final written warning. My manager refuses to believe me, even though in a couple of instances, I had witnesses who supported me, not him. My HR representative has been no help because she supports management. Since the written warning, I have been carrying a recorder and recording all conversations with the supervisor and manager. I live in CA, so I know this would not stand up in court, but all I want to do is have proof of the supervisor lying. I had hopes of taking the proof to the head of HR to clear my name, not of going to court. But could I be the one to end up fired or in jail?
ReplyDeleteHi magjo. I would suggest talking to an employment lawyer in your state to find out what options you have. You might try http://www.nela.org, which is the National Employment Lawyers Association. They have a searchable member directory by state, and their members all handle employee-side cases.
ReplyDeleteThank you.
DeleteHey, I was told my boss to record somebody else. This person that was recorded lost his job because in the recording he was sexually harrasing a female at work. Now he text me saying he would do a civil suit on me.
ReplyDeleteHelp?
Hi xN3T0x. It sounds like there might be a claim if the taping was illegal. You should talk to an employment lawyer in your state about it.
ReplyDeleteMy job code was changed on my payroll stub without being notified of the change. The change went from a supervisor status to a clerical status. I am very upset over this change. Since my hire, I have been asked to work a lot of overtime,travel to different locations and fill in other departments which I have done and never complained. I asked my supervisor about the change and he said he was unaware of it. He did make a call and discovered that one of his supervisors had made the change with out notifying him. I asked if I did done something wrong and he replied no. I would like to know if I could record a conservation as I intend to ask for original job title to be reinstated since I have done nothing wrong, I work in Sc. The job classification of clerical would make it difficult to obtain another position in the same field I am currently working as with a different company.
ReplyDeleteHi just2me. It sounds like you should talk to an employment lawyer in your state. Try http://www.nela.org to locate someone there. In general, you can always record someone with their permission.
DeleteI'm a manager of a new company in Oregon who reports to the GM. The GM is constantly degrading people of other races using all the expletives you can think of; to include race, religion, and sex. Nothing is of limits. I would like to record his behavior and present it to the owners of the company. The owners are uber Christians, and my GM has them buffaloed that he is one as well. The owners need to know the fake hypocrite they have running their company. Would it be a good idea to record his conversation in an effort to get him removed from his position?
DeleteAs I recall, Oregon is a one-party consent state, so if you record a conversation you are participating in, then it might be okay. I'd suggest talking to an attorney in your state to be sure.
DeleteHi. I recorded my boss harassing me at work because the last time I went to HR they didn't believe me. I told HR I recorded the call and it sounds like I might get terminated. I was scared and tired of being harassed. I told HR that, but it didn't matter. No one on site would believe me. I'm still scared, now even more so because from the research that I've done I can do jail time. Am I in legal trouble? I recorded the call on an old phone that I don't have anymore and I don't have any copies of it anywhere. I haven't been able to follow up with HR to let them know, because they have been off. Am I in BIGGER trouble now that I don't have it? I live in Illinois.
ReplyDeleteHi Hern. My best suggestion is to talk to a lawyer in Illinois speedy quick. Good luck!
DeleteI have been telling my supervisor for months that I have a memory problem. He knew that I was working with a neurologist. I recorded a meeting with him where I anticipated finding out what my new job duties would be. I live in MD and was terminated for making the recording, even through I told them why I did it.
ReplyDeleteI'm in Ohio my father in law lies and manipulates the truth and his grown children. He wants to have a meeting with my wife and myself since there has been very little contact between him and us. Can I record this conversation since we will be in his house? I will be a participate in the conversation as well as my wife. My wife also knows my plans. I just didn't know since this conversation will be in his house if that changes anything. Thank you for your help
ReplyDeleteConcerned Husband & Father