Using Your Smartphone Is Not Always Smart: Recording Conversations at Work

As we all know, anyone with a Smartphone can take a video or record a conversation without your knowledge. Is it legal? The answer depends upon the state in which you are located and several other factors. This article addresses the rule in Illinois.

In most states, it is not unlawful to record a conversation if one party knows about the recording. In many states that one person can be the recorder (keeping in mind that, the law will vary depending upon the nature of the recording, such as a person in a restroom, a changing room or at their private residence).

Illinois is a two-party consent state, also known as “all party consent.”  What does this mean? It means that it is illegal to record a private conversation unless all parties involved in the conversation consent to it, subject to some exceptions such as law enforcement activities, which will not be addressed here.

The Illinois Eavesdropping statute states:
“A person commits eavesdropping when he or she knowingly or intentionally:
. . .
“Uses an eavesdropping device, in a surreptitious manner, for the purpose of transmitting or recording all or any part of a private conversation to which he or she is a party unless he or she does so with the consent of all other parties to the private conversation.” 720 ILCS 5/14-2(a) and 2(a)(2).
Can an employee secretly record workplace conversations or meetings, such as a private meeting with human resources or a supervisor? This situation may arise when an employee is considering filing an employment discrimination claim and plans to use the recording of the meeting as evidence to support their claim. As mentioned above, Illinois is a two-party consent, so most likely the evidence cannot be used, and recording of the conversation may subject the employee to liability and criminal penalties.

But, what is a private conversation? The Illinois statute defines a private conversation as “any oral communication between 2 or more persons, whether in person or transmitted between the parties by wire or other means, when one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation.” 720 ILCS 5/14-1(d).

In the example above, the employer could argue that there was a clear expectation of privacy and that it is reasonably justified in believing so. However, if the same conversation was held with the employee in a hallway with many people in the vicinity and able to overhear it, the employer’s argument may not be successful.

Employers may consider adopting a “no-recording” policy that prohibits the surreptitious recording of workplace conversations and which provides that any employee who violates the policy is subject to discipline, up to and including termination. Any such policy should describe the employer’s legitimate reasons for prohibiting recording. This may include protecting patient privacy and confidential business information. It should also be carefully drafted, implemented, and administered in a way that does not interfere with an employee’s rights under the National Labor Relations Act.

For further information contact us.