A Capehart Scatchard Blog

Silence is Golden: Someone (Maybe Even Your Own Employees) Might be Taping You

By on July 25, 2018 in Privacy with 0 Comments

As anyone who has read my blog articles know, I get a lot of questions from clients as part of the counseling work that I do, and frequently, I find that clients have the same sorts of questions on a particular topic.  One such question that I get often is whether an employee can surreptitiously tape record conversations between himself or herself and another employee or even a management representative of the employer.  With I-phones and similar technology, it has obviously gotten even easier for such surreptitious taping to happen in the workplace.  It is especially of concern to employers when employees are being called in to interviews as part of company investigations or meetings where employee performance may be addressed. Such concerns become even more heightened when dealing with an employee who the employer knows is a potential lawsuit waiting to happen.  The answer to this question about the legal allowance of such secret taping by employees might very well surprise you.

Believe it or not, such taping might not be illegal, depending upon the state where the taping is occurring.  The laws implicated in such situations are eavesdropping and state wiretapping laws.  These laws place certain restrictions on when such tapings of conversations can occur.  In a place such as New Jersey, tape recording a conversation is fine so long as one person to the conversation consents to the taping, and that one person can be the actual person doing the taping. Moreover, that individual need not even tell the other person that they are being taped for it to be legal under New Jersey law.  Conversely, in a place like Pennsylvania, each person to the conversation must consent to the taping, and any surreptitious taping could result in possible criminal charges against the wrongful taper.

So what should an employer do in a place like New Jersey to combat secret taping of workplace conversations?  For one thing, the company should have an unequivocal workplace policy prohibiting such taping in any areas of the company’s buildings and workplace.  If your company has very sensitive confidential and proprietary information, you could even go so far as to ban all personal communication devices and electronics from the workplace entirely.  For employers who do not wish to go that far, when involved in sensitive meetings or conversations with an employee, make sure that the employee has not brought any type of taping device with him/her before you start your conversation.  Tell them that if they are hiding such a device, or lie about having one on them at the time of the discussion, that discipline will be imposed which could include immediate termination.  That way, before the conversation happens, you the employer can exercise some control over whether such illicit taping happens. Moreover, remind managers to be careful in what they might tell an employee because you never know how that could be later used by an employee against the employer.  As the title to this article says, silence on sensitive topics being discussed with employees is indeed golden.

Being a proactive employer can go far in avoiding unwanted taping of conversations in your workplace.  They happen, and I have defended many cases where such surreptitious tapings have been produced, and countering what was said became a major part of the case defense.  So, the time is now to start taking preventive steps to ensure that the old proverb “silence is golden” continues to thrive in your workplace.

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Ralph R. Smith, III, Esq.

About the Author

About the Author:

Mr. Smith is Co-Chair of Capehart Scatchard's Labor & Employment Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitrations, drug testing, and employment related contract issues.

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