Is Recording Conversations at Work Illegal in My State?

Workplace disputes can arise for many reasons. If you feel you’re being mistreated or misrepresented by a customer, co-worker, or supervisor, you may have wondered: Can I record an interaction to prove the mistreatment? The answer depends on state law.

In some states, you cannot record a conversation without the express permission of all parties involved. Other states allow recording if at least one person consents to recording workplace conversations.

To understand your state’s consent laws for recording conversations at work, talk to a local employment and labor law attorney.

Recording of Conversations and Wiretapping Laws

Different states take different approaches to wiretapping laws. Generally, states follow either one-party consent laws or two-party consent (all-party consent).

In one-party consent states, you can generally record a phone conversation if you are part of the conversation. In two-party consent states, privacy laws prohibit recording unless all parties consent.

The following table shows state consent laws for recording conversations.

Some states also have different policies for secret recordings, where there is an expectation of privacy, versus recording a conversation in a public place.

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Two-Party Consent To Record Private Conversations

The majority of states, including Georgia, Michigan, and New York, follow one-party consent laws. Federal wiretapping laws also follow the one-party consent rule. Other states, including California, Massachusetts, and Pennsylvania, are all-party consent states.

For example, Illinois is a two-party consent state. In many circumstances, it’s illegal to record a private conversation in Illinois without the consent of all parties. Under state law, a person commits eavesdropping when they use an eavesdropping device “in a surreptitious manner” for the purpose of overhearing, transmitting, or recording all or part of a private conversation to which they are not a party.

If the person recording does so with the consent of all of the parties to the private conversation, they have not made a surreptitious recording. Making a recording in a public area where there is no reasonable expectation of privacy is not illegal eavesdropping.

What Counts as an Eavesdropping Device?

Eavesdropping devices can record in-person conversations or phone communications. An eavesdropping device could include many kinds of recording devices. Audio recordings of cell phone calls, video recordings, and wiretapping are common examples.

A secret, nonconsensual workplace recording would constitute eavesdropping. You can face criminal charges for recording a private conversation without consent.

Recording Conversations and Employer Policies

Your employer may have policies regarding recording at work. Generally, an employer can prohibit employees from making audio recordings in the workplace. However, employer policies cannot violate protected activities under the National Labor Relations Act.

An employer may need to show the policy serves a legitimate and substantial business interest. If your employer’s policies are restricting your labor law rights, talk to an employment law attorney about your legal options.

Recording Without Consent Is Not the Way to Gather Evidence of an Employment Claim

As an employee, it is understandable that you may want to record certain workplace conversations. If you have an employment dispute or feel you are facing retaliation, the evidence from a recording would seem useful. It might even provide the “smoking gun” evidence that you feel you need to bring a claim. Nonetheless, secretly recording a private workplace conversation is a serious mistake. In sum:

1. You generally cannot use unlawfully recorded evidence in an employment law case
2. You could face criminal liability for making an unlawful workplace recording
3. You could face a civil claim by an employer or co-worker if you make an unlawful recording

What you can do to document workplace mistreatment is take detailed notes about what happens to you there. You can also save correspondence, such as emails, chats, letters, or text messages. However, you should not record a co-worker or supervisor without consent. Consult an employment law attorney early on to help you handle the dispute and collect evidence effectively.

Find Experienced Legal Help

If you have any specific questions about the legality of workplace recordings, talk to an experienced employment attorney for legal advice. A lawyer can help you take action to address the underlying issue. An attorney can also protect you from serious legal liability by making an unlawful workplace recording.