The Omnibus Crime Control and Safe Streets Act of 1968, amended by the Electronic Communications Privacy Act of 1986, makes it unlawful intentionally to intercept wire, oral or electronic communication. Often referred to as the Federal Wiretapping Act, the law allows an exception when one party to the conversation has consented to interception. Because the employee in question is a party to all conversations being recorded, federal law presumably would not apply to this situation.

Many states also have developed wiretapping laws. Among those that call for prior consent for lawful interception, about half (Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Illinois, Iowa, Louisiana and Ohio) mirror federal law in requiring only one party’s consent, according to the Bureau of National Affairs HR Library.

Some states (California, Connecticut, Florida, Georgia, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington) require the consent of all parties to the communication to lawfully intercept communication. Accordingly, secret recordings can be unlawful in those states and employees can face fines and penalties if prosecuted. Employers in these states should consult with legal counsel in deciding how to proceed.

Beyond complying with federal and state laws, employers may consider implementing a policy that prohibits the recording of conversations by employees. In addition to protecting privacy rights and proprietary information, such a policy can help maintain open communication between management, employees and co-workers. Employee recording of conversations significantly can interfere with channels of communication.

Such a policy might include the following:

• A statement regarding the purpose of the policy.
• Examples of the types of interception that are prohibited without authorization (tape recording, videotaping, etc.).
• Individuals in the organization who have the authority to allow any interception.
• Situations, if any, in which interception is permissible.
• Consequences of violating the policy.

Due to federal and state regulations involved, as well as existing and developing case law in this field, it is advisable for employers to consult with legal counsel in developing a policy regarding employee interception of communication in the workplace.

Please Note: This material is provided as general information and is not a substitute for legal or other professional advice. Contact the Knowledge Center for more information.

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