Recording Conversations in the Workplace
September 8, 2020
Good morning. My name is Nicholas Kennedy and I’m an employee rights and discrimination attorney here at QuatriniRafferty. Today I want talk to you about recording conversations. With everyone having smartphones nowadays, it’s easy to do. It’s easy to record a verbal conversation or to record a telephone call and actually this video right now is being recorded on a cellphone, so it’s everywhere and admittedly, this is more of a criminal law issue than an employment law issue but I see it in the employment law context, and that’s why I want to talk about it today because a lot of my clients who I speak to, they record conversations with either human resources, their supervisor, or coworker because there are very challenging issues that can arise in the workplace.
There are issues of discrimination and harassment and a lot of concerning conversations and very serious conversations that you can have in the workplace and a lot of people want to record that, so they have a record of it. But the issue is in Pennsylvania, we have a wiretapping law, most states have a form of this law and Pennsylvania is what’s called a two-party consent state. Some states are one-party consent state, but what a two-party consent state is or what that means is that all parties who are part of the conversation have to consent to the recording. So, it’s not just good enough that you yourself want to record it. You have to get the consent of the other individual and if you don’t get their consent, whether it’s an in-person conversation or a telephone conversation, you’re actually committing a felony by recording that conversation. And now there are exceptions to that rule. Primary one, it’s not really an exception, but it relates to the person who you’re recording. If they don’t have a what’s called a reasonable expectation of privacy. That means is if you’re at let’s say a conference, a work conference or you’re listening to a public speaker. They don’t have an expectation of privacy. They’re speaking to a large group of folks; they know that their words are being seen by many people.
They don’t expect it to remain private. And so, it would not be illegal to record a conversation in that circumstance. But it doesn’t necessarily mean that if there’s multiple people it, it’s okay to record it. It really just depends on the context. But most conversations in the workplace, it will be yourself and a co-worker, yourself and your boss, or maybe human resources and your boss, and in that circumstance. Typically, there would be an expectation of privacy on all on all sides and as a result, if you record that conversation then you’re committing as a described a felony criminal act another exception to the rule is that. If you believe that an act of violence by the person you’re recording if they’re committing an act of violence or going to commit an act of violence or have committed an act of violence and you’re recording will lead to evidence of that act of violence. Then that’s okay and that exception. Thankfully, and hopefully you don’t ever have to be in a situation in a workplace where an act of violence is an issue. So, if that beyond that exception with the act of violence, you should steer clear of recording conversations.
What I tell my clients is you can ask to take notes, or you can take notes shortly after the conversation, just when your memory is fresh. It’s a good practice to do and that’s completely legal to do that but just resist the urge to turn on your cell phone and start the voice memo or voice recording of that conversation because even if it’s the best evidence ever of discrimination or some other illegal acts in the workplace, I won’t be able to use it because it was recorded illegally. And I won’t be able to listen to it because it’s not only a crime to record the conversation. It’s a crime to play it for someone else and it’s a crime to use it in any fashion. So, there’s different uses and so you can continue to commit crimes beyond the recording. If you record it and then you share it, you play it for someone else, that second act is a crime in and of itself.
So, I understand the urge a lot of my clients do it and it’s a natural reaction because you know we live in a world where everything is documented and we’re told to document everything to be thorough and to protect ourselves but do not give in to that urge to record those conversations and if you ever have any doubt, if you’re ever having a meeting coming up or anything that’s going on in the workplace and you want to talk to me about it prior to that, I would strongly encourage that. I’m happy to speak to any of our clients or any folks out there who have any concerns about what’s going on in the workplace and we can talk about you know the potential for recording and the issues that come with that. So, kind of dealing with a crossover issue today of criminal law and employment law, but I think it’s a very important one and I hope everyone stays safe out there and feel free to give us a call. If you have any employment law issues. Thank you.