Is It Legal to Record Your Boss or Coworkers?

Cell phones do almost everything these days. You can go online, text, take pictures, and record conversations. When you’re recording friends or family, there’s nothing wrong with taking pictures or video. But other laws may apply when you take recordings at work.

At work, you may need to take photos to prove wrongdoing or protect yourself from accusations. Other times, you may want to record conversations between yourself and others at work to prove they are harassing you or breaking the law.

Before secretly recording a discussion or hiding a camera in your desk, ensure you’re following state and federal laws. In this article, we'll cover the basics. To learn how these laws might apply to your situation, consider speaking with a local employment attorney. 

Federal Laws on Consent

Before you can record anyone, someone must consent to the recording. The federal Electronic Communications Privacy Act (ECPA) permits electronic recording of conversations as long as one party consents.

The ECPA limits such recording to situations where:

• There is no criminal or tortious intent
• There are no state laws with other requirements

Thirty-eight states, including New York, align with federal law and are “one-party consent” states. In these states, as long as you are part of the conversation, you can record it.

For example, in a one-party state, you could pull out your phone and start recording if your boss starts yelling at you in a meeting. But, you cannot leave a tape recorder or other device running and collect it later.

One-party consent laws prohibit recordings where the recorder is not physically present. At least one person who is aware of the recording device must be present in a one-party consent state. If you were not the physical recorder, the hearsay rule may apply.

You also cannot alter, edit, or amend the recording in any way.

State Laws on Consent

Fourteen states require what's commonly called "two-party consent." But in a practical sense, they require all parties to consent.

In these states, all involved parties must know a conversation or discussion is being recorded for the recording to be legal:

• California
• Connecticut
• Delaware
• Florida
• Illinois
• Maryland
• Massachusetts
• Michigan
• Montana
• Nevada
• New Hampshire
• Oregon
• Pennsylvania
• Washington

In public places, you can generally make video and audio recordings without much issue. Both federal and state laws apply to private conversations where parties have a reasonable expectation of privacy.

What Is a "Reasonable Expectation of Privacy?"

Two-party consent laws operate where there is a “reasonable expectation of privacy.” Courts usually define this as a situation where people believe outsiders will not overhear their discussions. For instance, most people have a reasonable expectation of privacy in their cars. There is less of an expectation of privacy on the bus since buses are public.

The legality of audio and video recording in an office or other workplace is unclear. Employers cannot legally have video cameras in employee break rooms or locker rooms without posting a notice of such recordings.

Employees can expect less privacy in an open-floor office than in places where all workers have their own offices with doors. It is still a good idea to check with an attorney before recording your co-workers in the break room.

Recording Harassment and Bullying

Many employees want their recordings to document instances of sexual harassment, bullying, or a hostile work environment. Proving harassment is difficult, and a recording would make your case air-tight, or so it seems.

Unfortunately, in two-party consent states, the law prohibits secret recordings. Even if you made the recordings as evidence for a harassment claim or wrongful termination suit, a judge will probably exclude them.

However, there are some situations where even two-party consent states permit secret recordings.

Whistleblowing and Recording Evidence of a Crime

If you believe there is an immediate threat of a crime and the only way to preserve evidence is by surreptitiously recording it, a judge may permit its use in court.

For example, California allows such recording “to obtain evidence related to the commission of extortion, kidnapping, bribery, human trafficking, or domestic violence.”

However, federal wiretapping laws make “no-party” recording illegal without a warrant. Law enforcement agencies must obtain judicial permission to eavesdrop on conversations without either party being aware. Eavesdropping by private citizens is also not permitted.

Get Legal Advice from an Employment Attorney

If you have a workplace situation you think needs recorded, it’s a good idea to contact an employment law attorney before you start taping. Even in one-party states like New York, you must follow evidence rules to present your recording in trial.

If you think you have a potential claim for workplace harassment or discrimination, your attorney can also help you find other ways to document incidents while staying on the right side of the law.