
Labor and Employment Advocate Stephen E. Imm At a time when nearly everyone carries a smartphone with us almost constantly, it is possible for any of us to have a video or audio recording of events and conversations with just the touch of a button create. As we all know, YouTube is full of spontaneous videos that people have made with their phones. What impact does this have on the modern working world? Can employees record conversations they have with colleagues or managers at work? What if an employee wants to gather “evidence” of sexual harassment that they believe is happening? What if a worker wants to record a conversation with their boss while the worker is being screened or disciplined? Do they have the right to do this? Do they need to tell other people they are being recorded? Federal and Ohio law permits an individual to make such recordings provided that at least one party to the recorded conversation, such as B. the party recording it has given permission. It is important to note that the person making the recording does NOT need to have permission from the OTHER parties being recorded, as long as the person making the recording is a party to the conversation. (This is in contrast to hiding a microphone or cell phone in a place where the people being recorded are not participating in a conversation using the device’s power supply. That would likely be illegal.) However, employers may wish to prohibit such recordings. at their workplaces. And many employers have policies in place against it. They believe their employees should be able to express themselves at work without worrying about being recorded. They believe a no-recording policy encourages openness in meetings and other interactions. If people fear they might be recorded, they are likely to be more careful about what they say. This can prevent open and honest communication. Can an employer prohibit its employees from recording in the workplace, at least if this is done without permission from the company or the person being recorded? You may be surprised to learn that such policies have been banned. The National Labor Relations Board has argued that a blanket ban on workplace record-keeping could limit workers’ rights to engage in “concerted activities”. This right, which exists in both unionized and non-union workplaces, ensures that workers can talk about their working conditions and other aspects of their employment and work together. In a case involving retailer Whole Foods, the NLRB ruled that a company policy prohibiting any record-keeping in the workplace is illegal because it could interfere with employees’ rights to “concerted activities.” That ruling was recently upheld by a federal appeals court. Other courts, and perhaps the Supreme Court, may consider the matter in the future. For now, employers must have legal counsel review policies on workplace records to ensure they are consistent with the NLRB’s decision. And employees should know that in most cases they have the right to make such records. Give us a call if you have any questions about this important and changing area of law. _____________________ Stephen E. Imm is an experienced employment attorney who can help you with your employment law issues. You can reach him at 513-943-5678.
Is it illegal to privately record someone without their consent?
While not publicly viewable, a degree of privacy is expected, making it illegal under certain circumstances to record someone without their permission. If you are on personal property, it is up to the owner’s discretion whether photos and videos are allowed. If the landlord prohibits photos and videos and you decide to take or record them anyway, you may be asked to leave the home or even arrested for not following the landlord’s requests.
There are currently 36 states plus the District of Columbia that are one-party states. A one-party status means that as long as you are part of the conversation, you can record that conversation without the consent of the other party.
Learn about state recording laws
Federal and state call recording laws are not always easy to understand. So we’re here to help you clear up any confusion you may have about your rights when recording conversations.
According to Wisconsin-based law firm Matthiesen Wickert & Lehrer, 38 states and the District of Columbia allow so-called “single-party consent” for recorded conversations, whether in person or over the phone, while the other 11 states have so-called two-party laws and actually require all parties to give their consent before any conversation can be recorded.
State protection laws vs. federal laws
In scenarios where state laws protect privacy less than the wiretapping law, the latter takes precedence. This means that a state law that would allow someone to record a private conversation without their consent would be overridden and effectively repealed by federal law.
On the other hand, where state laws provide citizens with a higher level of privacy than is provided for under federal law, the law will not be overridden. Provisions of state law would be retained.
Legal:
- CRS 18-9-304.
- people v. Rivera, (Colo. 1990) 792 p.2d 786.
- People v. Palmer, 652 p. 2d 1092 (Colo. App. 1982). Criminal proceedings or charges of consensual recording may result in summary judgment (Abrahamsen v. Mountain States Telephone and Telegraph Co. (Colorado Supreme Court, 1972), 494 P.2d 1287).
- CRS 9-18-304.
- Other states with single party consent include Alabama, Alaska, Arizona, Arkansas, District of Columbia, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine , Minnesota , Mississippi, Missouri, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wisconsin Wyoming. Meanwhile, all of the consenting states of the parties are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, Vermont and Washington. People in consent states of all parties have a higher reasonable expectation of privacy.
- Wiretapping is both a state and federal crime. United States Code § 2511(2)(d) (“It is not unlawful under this chapter for a person, not acting under the law, to intercept a communication, whether wire, oral, or electronic, if that person is a party to the communication, or if one of the parties involved in the communication has previously consented to such interception, unless such communication is intercepted for the purpose of committing a criminal or unlawful act”); Col. Rev. Stat. § 18-9-303(1)(a) (“Any person who is neither the sender nor the recipient of a telephone or telegraphic communication commits wiretapping if … knowingly hears, reads, records, copies or telegraphs a telephone or telegraphic communication ). electronic communications without the consent of the sender or recipient”).
- CRS 18-9-303(2).
- CRS 18- 9-303(2). Prior to March 1, 2022, tapping or wiretapping of cell phones was a Class 1 misdemeanor, with penalties ranging from 6 to 18 months in prison and a fine of up to $5,000. SB21-271.
- 18 U.S.C. § 2511(4)(a).