What does the IL eavesdropping law ruling mean for employees recording conversations in the workplace?
So often, potential clients tell us in our very first meeting that they have a smoking gun – that single piece of evidence that will prove their case and win the day at trial – they have recorded a conversation in which their supervisor disclosed a discriminatory, retaliatory, or otherwise unlawful motivation for their termination. These days, with the ubiquity of smart phones and tablets capable of easily and surreptitiously recording audio, it seems a no brainer for employees who fear their employers are out to get them to record and keep that clear and unassailable evidence. Unfortunately, as we have had to explain time and again to frustrated clients, recording those conversations without the consent of the supervisor (or even just using a recording taken without consent), has been a crime in the State of Illinois – a violation of the state’s eavesdropping law.
Until yesterday!
The Illinois Supreme Court struck down the Illinois Eavesdropping Law in its People v. Melongo decision published yesterday. Annabel Melongo had been charged under that law for recording and later publishing three telephone conversations she had with a State court reporter in an effort to prove that transcripts of court room proceedings had been fabricated against her. Sadly, after publishing those recordings online, she was charged with six counts of criminal eavesdropping and, ultimately, served an unimaginable twenty months in Cook County Jail as a result.
Ruling on a motion to dismiss that Ms. Melongo drafted herself, the Supreme Court reasoned that the statute, as currently written, “criminalized the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others.” Considering the purpose of the legislation (to protect conversational privacy), the court ruled that the scope of the eavesdropping law was too broad and, as a result, held it unconstitutional on its face.
This decision could prove to be great news for employees and their smoking gun recordings.
However, it is worth noting that the Supreme Court’s examples of public conversations do not include a workplace communication between two employees. Additionally, Illinois legislators are already talking about acting to pass new legislation that cures the over-breadth concerns raised by the court but still criminalizes truly private conversations. Thus, it remains to be seen whether the current freedom to record will continue and, if not, how new legislation will define the boundaries of private conversation.
We certainly hope that an individual’s right to gather and preserve evidence of legal wrongdoing (and not just criminal conduct) will be taken into account in crafting any new legislation or exceptions thereto.
