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.