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A business leader recently called and described a very challenging situation. His office received a call from a current employee stating that a fellow employee was “taping” every conversation he had with the CEO and leaders and would “use” this recorded information in the event he was ever terminated from his position. The business leader didn’t want to unnecessarily raise a concern and asked for advice.

HR Guru Solution

These situations always start with more questions than answers. What is the performance of both employees; the employee who called and the employee who is “taping” the conversations? The business leader stated that both employees had strong performance with no issues. Yes, now is the time to scratch your head and ask, “Why are they doing this?” Should you approach the employees? Can you take action?

Whether you consider this forewarning, or a poor use of time, these situations offer an opportunity to scrutinize your actions. If you knew you were being recorded and your conversations might appear as testimony, would you act differently? When employees are treated with respect and dignity, even in the situations that are challenging and costly…you have nothing to fear.

Employee recording within the workplace has become increasingly widespread. The Equal Employment Opportunity Commission has reported that approximately one-third of employees who make discrimination complaints in its Houston, Texas office bring some form of digital evidence, including audio recordings.

Proactive Steps

To prohibit employees from recording conversations within the workplace, employers should consider adopting a “recording” provision or policy within an employee handbook addressing communications. This policy should include examples of types of prohibited recording.

Accordingly, to maintain best practices in the workplace, employers should be aware of federal and state privacy laws, which regulate monitoring of potentially confidential communications in the workplace.

Federal Privacy Act Expand Law

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, also known as the Federal Wiretapping Act, makes it unlawful for an individual to intentionally intercept or disclose any “wire, oral or electronic communication.” 18 U.S.C. §§ 2510 et seq. The Act contains an exception and allows for electronic monitoring where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. 18 U.S.C. § 2511(2)(c).
State Privacy Laws Expand Details
The majority of states have wiretapping statutes, and many states have modeled the statutes after the federal law. Thirty-eight states and the District of Columbia are considered “one-party” consent states and permit individuals to record conversations so long as one party consents to the recording. Therefore, an employee who works in a “one-party” consent state may likely tape record a conversation with his or her supervisor—as long as the employee is a present party to the conversation. Twelve states are considered “two-party” consent states, and require, under most circumstances, the consent of all parties to a conversation.