Legal Insider: Recording Conversations in the Workplace

 Berry&BerryRevised

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Legal inquiries regarding the use of voice recorders in the workplace have increased in recent years with the use of smartphones. Many software applications (apps) designed for smartphones make the process of recording others easier than ever and unknown to the party being recorded.

However, there are serious legal issues involved in the recording of others that should be considered before doing so. Generally, recording of conversations in the workplace is not recommended given the number of legal and workplace issues that can develop for an employee as a result.

Laws Governing Recording in the Workplace

Depending on each situation, federal wiretapping laws can apply to the recording of other individuals.  In addition, each state has different laws adding to a complex set of laws that could apply to any given situation. In addition, in the employment context, making a recording can be considered a violation of company policies. In our legal practice, we have also defended private sector and federal employees who were disciplined for their use of recording devices in the workplace.

Recording an individual on a telephone can be extremely problematic because doing so in one jurisdiction might be legal while the other party to the telephone call could be on a cellphone in another state where the law is different.That could make the recording illegal and subject an individual to prosecution.

Recording someone during an in-person work meeting is also problematic. Virginia law (Virginia Code § 19.2-62) makes it a crime to intercept wire, oral, or electronic communications, unless one party to the conversation consents. Even though this means that an employee, in theory, could record a conversation during an in-person meeting without obtaining all parties’ consent and not break Virginia’s criminal laws, doing so is not recommended and rarely worth the risk.  Before attempting this, in any event, it is important to discuss the specific facts of one’s individual situation with an attorney to avoid any criminal complications later.

General Advice on Recording Others in the Workplace

While an employee may in some situations be able to record conversations with others in the workplace without breaking criminal laws, it does not mean that doing so is a good idea because there are several risks.  For example, an employee could be terminated if he or she is caught recording others (e.g. a supervisor during a performance meeting) in the workplace based on a company policy against recording others or under a general misconduct policy.

Furthermore, the value of having a recording may be significantly diminished or barred from a later court proceeding if done without the consent of all parties. In addition, employees and employers may find themselves subject to potential civil liability under privacy laws for recording others without their permission.

If an employee or employer has recorded others in the workplace, it is important to discuss these issues with an attorney as soon as possible because the issues could get complicated and involve liability for either party. Our firm represents federal employees and private, state, and county employees and employers in Virginia, the District of Columbia, and Maryland regarding employment matters.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  Please also visit us on Facebook at www.facebook.com/BerryBerryPllc.

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