If recording of conversations is going on at work, there may be legal trouble ahead. The legality of workplace recording depends what state you're working in and whether both parties consent to the recording. Use caution, as illegal recording can bring criminal charges as well as a civil lawsuit.
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Federal and state law applies to any form of recording: over the phone via a device or wiretap, or using a recording machine present in a room. There are strict federal laws governing the use of recording devices by the police and other public agencies, while others cover the recording of conversations by private individuals, in a workplace setting or elsewhere.
The laws on workplace recording govern private conversations. Both parties must reasonably expect that their conversation is private and not being overheard. Federal law permits workplace recording if one of the parties consents to the recording. Acceptable forms of notice include oral or written notification, or an audible tone that can be heard throughout the communication.
As of April 2011, the law in 38 states permits recording a conversation if one of the parties consents and does not inform the other party that recording is going on. A manager, for example, may record the telephone conversation of an employee in these states even if the employee is unaware of, and does not consent to, the recording. If an outsider comes into the workplace and uses a recorded line, he must be notified and give consent to any recording.
The remaining 12 states, by contrast, do not permit "one-party consent" recordings, and require both parties (or all parties if there are more than two), to consent to the recording. These states are Maryland, Massachusetts, Pennsylvania, Washington, California, Connecticut, Nevada, New Hampshire, Florida, Illinois, Michigan and Montana. In some cases, someone working in a one-party consent state may be conversing with another party in a two-party-consent state. By the decision in Kearney v. Salomon Smith Barney, decided in the California Supreme Court in 2006 and used as precedent in the other states, the stricter two-party law applies.
The laws do not make an exception for video cameras that also record conversation. If you are taping a private conversation, the parties must be aware of and give consent to the voice recording according to the laws of the state. You are also barred from making any form of illegal recording public or disclosing it. If you give notice that a conversation is being recorded, and the conversation continues, the consent of both parties is implied by the law.
Under a federal law passed in 1968 and adopted by most states, the courts allow civil remedies for an invasion of privacy; therefore, illegally recording a workplace conversation creates a cause of action for a lawsuit, and a demand for judgment and damages. Any breach of state or federal law also gives an employer grounds for termination of the guilty party.
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- Morrison Foerster: It May Be Incredibly Easy in the Digital Age, But Secretly Recording Conversations Is Still Illegal; Lindsay LaSalle; December 16, 2009