Is It Legal Record a Conversation with My Employer?

June 13th, 2019

As an employment law attorney, I am often asked, “Can I record a conversation with my employer without saying that I am recording it?” The answer depends on whether the state you are recording in requires a one-party or two-party consent and whether your employer has a company policy that prohibits employees from recording conversations.

One-Party Consent States

One-party consent, the more common standard, permits an individual to record a conversation they are a party to without notifying the other party. In other words, most states allow a person to record a conversation without telling the other parties to the conversation that you are indeed recording it.  However, the person recording the conversation MUST be a party to it.  Leaving a device recording in a room where others are talking without your input or presence is not permitted and could be regarded as illegal wiretapping. The one-party consent standard is also the federal standard.[1]

Two-Party Consent States

The two-party consent rule, better known as the “all-party” consent rule, requires the consent of all parties to a conversation. As a general matter, many lawyers and scholars suggest sticking to the strictest rules when and if a person has doubt regarding legality. This can happen for example if you are calling someone from a one-party state, but the person you are calling is in a two-party state.

Workplace Recording Policies

Some companies have policies that prohibit employees from recording workplace conversations. Whether these policies are enforceable depends on the policies and the circumstances. This means that, even if you are working in a two-party consent state, you could be subject to discipline for violating company policy if you turn on your cell phone recorder when you meet with your boss. It is important to find out if your company has such a policy before deciding whether to record a conversation. Also relevant is whether the recording may include confidential or other types of protected information and what company policies exist about that.

So, Can I Record My Employer?

So what does this mean if, perhaps, you would like to record your boss harassing you?  The answer depends on where you are recording the conversation and your company’s policies. For example, if you recorded your boss in Minnesota without his or her consent that may be permitted, with certain exceptions.[2] Under the same circumstances in Illinois, you would need to notify your boss of the fact that you are recording.[3]

For more information about specific states, here is additional information from a 50-state survey: https://www.justia.com/50-state-surveys/recording-phone-calls-and-conversations/

If you have any questions regarding your ability to record a conversation in the workplace, you should make sure that you meeting the legal requirements for that state and obtain the advice of a skilled and knowledgeable attorney. At Halunen Law, our employment law attorneys are happy to help.

[1] 18 U.S.C. § 2511 (promulgating the federal standard for consent to recording conversations).

[2] Minn. Stat. § 626A.02

[3] 720 ILCS 5/14-1, et seq.