The surreptitious recording of conversations at work is a question that continually comes up in both investigations and incidents of workplace bullying, harassment, or sexual assault. Employees will ask, “can I record the person who is harming me?” The reason they ask this question is that when they bring forward their complaint to a superior or Human Resource (HR) professional they are told how their situation is a “he said, she said” matter. Therefore, to prove they are not lying and these incidents are in fact occurring, many targets are forced to record the conversation surreptitiously.
Toronto-area employment lawyer and mediator, Stuart Rudner, explains in a Canadian HR law blog, how individuals can record conversations with the law of one-party consent. However, caution must be exercised when recording all conversations and incidents that move beyond the direct attack on the target. He goes on to explain how for example when an individual is harassed, it is ok for them to do whatever is necessary to prove the allegations, mainly because harassment tends to occur when no witnesses are present.
The problem arises when employees record conversations and interactions that occur with a colleague or superior, with no reasoning behind the recording. Rudner clarifies how although it is not unlawful to record conversations with superiors or colleagues, due to the one-party consent law, doing so might constitute a breach of policy in the company under breach of privacy or breach of trust. Surreptitiously recording conversations for no reason can result in discipline, including dismissal.
Employment lawyers out of the United States, Ryan Guffey and Grant Shostak, explain the boundaries around workplace recording and whether or not workplaces should institute rules against recording conversations. Guffey and Shostak clarify how: (1) employers should tailor recording policy around the protection of critical business interests and should set out the reasoning for the rules, such as “confidentiality of employee records.” (2) Employers should also recognize the right individuals have to record conversations under the one-party consent law. Employees can record conversations when they are acting to protect themselves or prove an offence is occurring against them. (3) Employers should always consult with their legal counsel before disciplining an employee, to ensure they are correctly adhering to the internal policies of the company and they are not infringing on the rights of the individual. (4) Finally, employers should act as if everyone is recording them, and in doing so will ensure they behave appropriately and respectfully in all employer and employee situations.
The bottom line, every individual has a right (depending on where you live), under one-party consent law, to record conversations. However, as an employer, you need to protect yourself, and the best protection is to ensure ALL employees in your organization act as if they are ALWAYS being recorded and adhere to respectful behavior to avoid getting themselves into trouble with being recorded. If you comply with the rules of the company and treat everyone with respect and dignity, you should have nothing to worry about.
Guffey, R. & Shostak, G. (July/August 2017). What do colleges and universities need to know about workplace recording laws? Trusteeship: Association of governing board of universities and colleges, 25, 40.
Rayson, S. (2014). Stuart Rudner post: Dispelling myths around recording conversations, summary dismissal. Retrieved 2017, October 8, from advocatedaily.com