In light of the arrest of a South Carolina government employee for tape recording a conversation between co-workers, I thought I'd discuss a question I'm asked all the time in my law practice: Can I record a conversation with my employer?
Unfortunately, there's no easy answer to this question, and a mistake can land you in jail. Illegal tape recording can have both criminal and civil penalties. The employee in South Carolina faces up to five years in prison and a $5,000 fine. My advice is almost always: When in doubt, don't.
Still, many employees want to record a boss or HR at work, and there are good reasons to do so. If you have a sexual harasser, it's handy to catch them red-handed. It's hard to deny something a judge or jury can hear in the harasser's own voice. Some employees want to record meetings with HR to make sure they get all the important information or to have evidence of the reason given for termination or discipline. Other employees want to get evidence of discrimination or other illegal practices of the employer.
Here's what you need to know about recording conversations at work:
As an example, cases in my home state of Florida on the expectation of privacy at work say things like: "Society does not recognize an absolute right of privacy in a party's office or place of business." "[A]lthough defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect." "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does notnecessarily extend to conversations conducted in a business office."
The problem I have with relying on cases like these to tape at work is the use of weasel-words like "necessarily" and "absolute" and "reasonable." These cases are very fact-specific and that means a court could still find that your boss or coworker had an expectation of privacy. If you get it wrong, you can end up in jail. That Florida employee who was arrested for taping in a public building should give you pause about relying on these "no expectation of privacy" cases too heavily.
To summarize, you can probably tape a conversation at work that you're part of as long as you live in one of the 38 one-party consent states. You can also possibly tape a conversation that's in a public area (lobby, office or conference room with doors open, stairwell). You can maybe tape a conversation in the office behind closed doors. If you get it wrong, you're in big trouble, so be careful.
My best recommendation in all-party consent states continues to be, when in doubt, pull out your recorder and turn it on. Say, on the recording, "You don't mind if I tape this do you?" If the other person or people say they don't mind, keep recording. If anyone objects, turn it off. Pull out a pad of paper and a pen and take good notes instead. No potential case against your employer is worth risking jail time.