Clients often ask me whether a supervisor or manager can record a conversation with a subordinate without the subordinate’s knowledge. As technology has advanced to the point that we all have recording devices in our pockets (i.e. our smartphones), this issue will only become more prevalent in the workplace.

The first question I am usually asked  is “Is it legal?” Although I do not profess to be a criminal lawyer, my understanding is that it is not a crime to secretly record a conversation as long as the individual doing the recording is an “open participant” in that conversation. For example, it is not criminal to place your smartphone on a table and record the conversation you have with an employee, whether or not the employee is aware or consents to the recording. However, if you leave the room and leave your phone behind, and the phone records a conversation between that employee and a third party, then the recording becomes criminal.

In my opinion, the more important question  is “Should I record a conversation with my subordinate?” In other words, although something may be legal, is it appropriate to do in the context of an employment relationship?

With the advent of technology, it’s important for employers to turn their minds to this issue. Should an employer record audio in the workplace to capture employee misconduct or to further document an employee’s discipline? One thing to keep in mind is that secret recordings could capture personal information and infringe on privacy rights, which may lead to a claim for breach of privacy. In 2012, the Ontario Court of Appeal established a new tort of “intrusion upon seclusion” and awarded damages for the breach of privacy in a case where an employee of a major bank accessed the personal financial records of her ex-husband’s new girlfriend on at least 174 occasions. This tort could arise in a situation where an employee’s expectation of privacy is violated by being surreptitiously recorded.

Another problem is that secret recordings can erode the trust that is necessary in the employment relationship and lead to constructive dismissal claims. The case law around constructive dismissal is quite complicated, but generally speaking, a constructive dismissal occurs when an employer makes a significant change to an employee’s employment that shows the employer no longer wants to be bound by the contract. Furthermore, employers are subject to a duty of good faith both during a person’s employment, and at the time of termination. If employees have never been subjected to surveillance, suddenly introducing surveillance could be seen as a significant change that shows the employer is not willing to be bound by the original employment contract. Introducing new surveillance could also be seen as a breach of the duty of good faith. Judges have found that a breach of the duty of good faith can lead to aggravated and punitive damages in addition to wrongful dismissal damages.

On the other side of the coin, if you’re concerned about employees secretly recording conversations, it is best to address this concern proactively by introducing policies about the propriety of secret recordings at the workplace in your employment handbook. In particular, you can include a clause in an employment contract or introduce a policy which prohibits an employee from secretly recording a conversation.

Thus, just because something is legal, does not mean it is advisable. While I do not profess to know the law around recording conversations in the United States, I think we can all agree that even if it is “legal,” no one will be using Michael Cohen as an attorney after finding out he secretly recorded his conversations with Donald Trump. Secretly recording a conversation with your employee could open a can of worms, legal and otherwise; there are definitely more considerations to keep in mind than whether the act itself is criminal. If you are thinking of recording a conversation or introducing video surveillance into the workplace, please contact me at [email protected] or 647-985-9894.