Often, clients ask whether it is permissible to record their conversations with other employees in the workplace without consent. Far too frequently, employees pose this question after the un-consented recording has occurred. Generally, we advise against private recording without consent because it requires consideration of complex factors to determine whether the act is legally authorized and permitted.
The individual must consider federal laws, state laws, and the agency’s policies. Some states subscribe to a one-person consent rule that only requires one party to give consent to the recording. Other states maintain a two-person consent rule meaning both parties in a conversation must consent to the recording. The geographical location of the act can play a significant role as to whether the recording is permitted by the governing state law.
Another relevant factor is whether your agency has a policy that prohibits such actions. An un-consented recording that is permissible under federal or state law may still be prohibited by an agency policy potentially exposing the employee to administrative discipline. Furthermore, employees with security clearances may risk adverse consequences to their security clearances if the action of recording without consent raises concerns under the adjudicative guidelines for determining eligibility for access to classified information.
Employees involved in discrimination and whistleblower cases have defended against discipline by arguing that the recording is protected activity and, thus, it cannot be the basis of any adverse action. Such a defense is highly technical, fact specific, and difficult to prove. You must seek legal advice before attempting such actions as significant potential criminal and/or administrative ramifications exist.
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