Employee Beware: Why Secret Workplace Recordings are Risky Business for Employees

This Article examines the risks for employees when secretly recording workplace conversations. Although many employers flatly prohibit employees from secretly recording workplace conversations, case law contains dozens of examples of employees conducting such espionage. In the typical case, employees secretly record conversations to gather evidence to support claims of discrimination, harassment, or whistleblowing, but many of those individuals were likely unaware of the pitfalls associated with their clandestine activities. This Article uncovers various pitfalls for employees when secretly recording workplace conversations.

These include being fired by their employer for violating its no-recording policy, finding courts unreceptive to claims of retaliation under the employment discrimination laws, having otherwise valid harassment claims dismissed for attempting to record evidence of harassment rather than timely reporting the matter to their employer, facing civil liability or criminal penalties for wiretap violations, and being found liable in tort for invasion of privacy. Given these numerous pitfalls, this Article concludes that employees should generally refrain from making secret workplace recordings and should seek to gather evidence in other ways.