Can an employee record a confidential conversation with her employer and get away with it? “Yes” said a court in Kansas as it rejected the employer’s argument that such a recording was improper and unlawful.
One of the side effects of the increased presence of smart phones is the ability of individuals to record conversations with others, regardless of whether the other person knows the recording is being made or whether that conversation is a confidential one. In Domoney v. Class, Ltd., a U.S. District Court in Kansas examined a situation in which an employee had signed a confidentiality agreement with the employer which prohibited the disclosure of confidential information for any reason other than the performance of job duties and warned of legal action if such a disclosure were made. The employer subsequently conducted a confidential personal meeting with the employee in an attempt to resolve ongoing workplace disputes between the employee and a coworker. The employee recorded the conversation on her cell phone and sent a copy to her mother.
The employer attacked that recording alleging that it violated the Federal Wiretap Act. However, in doing so, it had to deal with one of the specified exceptions to the Act which allows for the interception of oral communications, such as a conversation, where one of the parties (the person recording it) gives their consent. It found that the employee, obviously, had consented to the recording. However, the employer argued that exception did not protect the recording because the Federal Wiretap Act also provides that even if there is one person’s consent, the recording may be unlawful if it was made for the purpose of committing any criminal act or civil wrong, in violation of the law.
The court concluded that for the recording to fall into that exception to the one-party consent rule, the employer had to prove that the purpose of the recording was to commit an independent wrongful act by the employee. If offered the examples of recording a conversation for later use to impeach the other participant in the conversation or the recording of a conversation to acquire evidence of possible wrongdoing in connection with anticipated litigation. It found both of those purposes to be acceptable. It also found that the wrongful act had to be one which was independent of the act of recording, in other words to support an independent outside act of wrongdoing. It found that there was no such wrongdoing and dismissed the employer’s motion.
The lesson here is clear. In the overwhelming majority of the cases, except in those few states which have not adopted the “one party consent” rule (there are approximately 12 states that require consent of all parties to the conversation) employers will not be able to attack an employee recording absent evidence that it was to be used for an independent wrongful act, such as, perhaps, extortion. In the absence of such evidence, courts will not intervene. Perhaps the real bottom line is to always be aware of the potential of such recordings and conduct business conversations accordingly.