Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Wednesday, April 6, 2011

I Secretly Taped My Boss And Now I Want to Sue

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
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
Pennsylvania
Washington


States that allow one party to consent are:


Alaska
Arkansas
Colorado
District of Columbia
Georgia
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


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.

50 comments:

  1. Hello There,
    I 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

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  2. 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.

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    Replies
    1. wat happens if your in new jersey and someone tapes you without your consent can you do anything about that

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    2. Hi 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.

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  3. I 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?

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  4. Hi 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.

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  5. Thank 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?

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  6. I'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.

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  7. Donna, 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.

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  8. Todd, I believe Alabama is a one-party consent state, but you should check with an employment lawyer there to be sure.

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  9. I 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.

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  10. Sorry 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.

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  11. I 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.

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  12. Hi 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.

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  13. One 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?

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  14. Hi 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.

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  15. Hey, 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.

    Help?

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  16. 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.

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  17. My 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.

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    1. Hi 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.

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    2. I'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?

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    3. As 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.

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  18. Hi. 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.

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    Replies
    1. Hi Hern. My best suggestion is to talk to a lawyer in Illinois speedy quick. Good luck!

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  19. I 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.

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    Replies
    1. Hi Thisguyneedshelp. Your question will be answered on Friday here: http://employeeatty.blogspot.com/2013/07/can-i-tape-my-employer-if-i-have-poor_26.html

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  20. I'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
    Concerned Husband & Father

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    Replies
    1. Hi William. I only do employment law. You should talk to a family lawyer in Ohio.

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  21. This comment has been removed by the author.

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  22. Can a person tape an argument you had with them months ago, without your knowledge....later play it for a Maryland court ...in an attempt to obtain a restraining order?

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    Replies
    1. Hi ohkee. This sounds like an issue you need to address with a Maryland lawyer.

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  23. I'm in the process to get my green card. I worked for a guy for few weeks. He knew that I didn't have my EAD by that time. He doesn't want to pay me. I have been trying to get my payment over 2 weeks. Yesterday he sent me a text saying "go fuck yourself. if you contact me again I will notify the authorities"
    What can I do?

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    Replies
    1. Hi Gisbk. My response to your question went up today. You do have rights even if you're undocumented.

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  24. My husband works for an employer that continues to make them work at least 12 hours a day 6 days a week..and now his employer wants them to start even earlier and has threatened all of them that if the labor board or OSHA steps in he will fire all of them and shut the plant down and then re-open and hire new people. Some have asked for a Saturday off and they were told that if they didn't come in to work he would dock their pay check..although they wouldn't get paid for that Saturday, he would still dock their pay. And he makes them get their trucks ready 30 minutes before and they don't get paid for those 30 minutes, they also don't pay them for 30 minutes for lunch, but if they stop for lunch they get yelled at by the boss for being late. Now he wants them to start at 3 a.m. on Monday so they can be to a job site by 5:30.
    Can my husband legally record his conversations with the boss without his knowledge?
    Due to the fact that they are forcing the employees to work so many hours, and last week on the hottest day of the year, they were hoping to go home because they don't have air conditioning in their trucks, and they weren't allowed to go into the office to cool down for a few minutes, they asked what time they would be able to leave and they were told that they could leave when the boss said they could leave...they didn't get to leave until almost 8 p.m. that night. and they had been there since 4:30 that morning.
    So can he record his boss when this happens and use it against him with the labor board or OSHA?

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  25. Hi. I live in PA as a state employee, and while sending a recorded message to my wife in my office, another state employee was inadvertently recorded in the background for about 20 second. I thought it was funny and sent it to a co worker of mine as a joke, and they accused me of the PA wiretap act. Since it was an accident, and since the person that was recorded was yelling out loud, and is a civil service state employee, does that fall under the PA wiretap act? Thank you very much.

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  26. How do these laws apply to federal employees on federal grounds where other state laws don't generally apply? I work at the VA hospital in New Mexico, which is a one-party consent state. Managers frequently lie after the fact and I'd like to be able to prove what was really said. Also, if it is legal, can you still face discipline from your employer if there is an organizational policy that says it is prohibited?

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  27. I am a manager at a restaurant I put my phone on record and walked out of the office to see what my General manager says about me. I listened to the recording she is talking very negatively and down about me to hourly associates even using profanity towards me. Can I get her fired for this???????? NEED ANSWER QUICK text me 703 398 3082

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  28. I work for a leasing office in Delaware. Recently the manager placed a video camera in the office but didn't tell us it also records our conversations. Do you know if this is legal or should they have our consent? (We didn't sign anything or even agree to the camera.)

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  29. If I post a sign at all doors to my building indicating that there are sound recordings being made on the premises, can I record conversations that occur in the building even if none of the participants in the conversation gave explicit consent? This would be similar in concept to an announcement prior to being connected to a customer rep that phone calls may be recorded. Is implicit agreement by having a conversation after passing the sign sufficient in a one party state?

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  30. I live in missouri and if our drawer is short we have to pay it back out of our pocket is this legal?

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  31. Donna,

    Are you still answering questions for your readers? I recently recorded a conversation where I was wrongfully terminated and further more threatened by HR in the meeting. I live in the great state of Texas, is this legal? Used in a lawsuit? To fight unemployment if they deny it?

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    Replies
    1. Hi Lil. You might want to check out my latest article on AOL Jobs, posted here: http://jobs.aol.com/articles/2013/11/19/can-i-record-a-conversation-with-my-employer/ I think it answers your question.

      Delete
  32. My boss pulled me into her office and demoted me I asked why and she had no answer she just started rambling different things which where untrue and I had to sit there and take it I told her I didn't agree because she just evaluated me and gave me a 4.35 the most you can receive is a 5 this conversation changed after a few minutes of me simply asking her questions she started pointing her finger at me an her voice escalated. I know that I should have been going toHR but this day was the first now my boss is friends with many of the higher up so I'm afraid they are not going to do anything about it so can I record while I'm at work. Oh and her handbook clearly states the procedure of warnings and probation and termination steps she did not take before demoting me there is a lot more to this story but I just want to know can I record my work days in Tennessee.

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  33. Our case is different we are a contractor in South FL. We had a job for a client that was a repair at another client of our client's home. Client wanted our company to do more than what we were contracted for and when we declined to preform the additional services he became irate. We have photo's of our work. He damaged our finished product and then called our client and stated we didn't do the job correctly and want the whole job redone (we provided quality work and he was being malicious because we wouldn't do more for free) and slandered us via email with false photo's after he damaged our product. He then stated that he also has our whole project videotaped thus knowing our trade secrets and procedures. This could cause substantial damages if given to our competitors. What course of action do we have if any?

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  34. Can I record a conversation with my boss if I don't use it in court? I want to take it to HR instead.

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  35. I live in Iowa and the state is a party of one consent. I work in a high stress environment and we can be accused from people we are working with of abuse or harassment and at time your even put with two of the opposite sex and if they fail it has happen where they make accusation of some kind of violation. I am not the only employee that carries a recording device other than a cell phone. I had a supervisor jump me when I attempted to have a discussion this person stormed off and demanded I go to the department manager he told a bare face lie to him and said I had became verbal and that I had a threating posture I never new someone who was in parade rest was threating. our state is a party of one consent and because this supervisor lied I told the manager that the issue was recorded he flipped demanded that I turn the recorder of which I complied he chewed me out never giving me the opportunity to show that this person just lied about me and because I record thing I am now a conspiracy theorist even though other record. what course of action should I pursue.

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  36. In Texas, can I be a member of the conversation, be the only one to consent and record the conversation I have with my bosses? In their office or anywhere else on site.

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  38. Hi I recorded my Co workers having a conversation about me on how I'm rude and how they were going to have a party when I leave and they couldn't wait for the meeting today , I been having issues with them , because they were disrespectful and I have talked to our clinical manager and they don't believe me, they think I'm the one causing the problem when I'm the one being in this environment of in professionals Co workers , I'm very stressed over this situation and my supervisor don't help the situation either what can I do?

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