Recording workplace conversations will bring you nothing but heartache.

Many of the clients or potential clients with whom I speak tell me that they either have been or are currently surreptitiously recording workplace conversations.  They are usually so excited when they tell me this because they assume the recording will be a smoking-gun piece of evidence to support their claims.  I cringe every single time I hear this because not only do I have to tell the person or client that we cannot use that evidence they so painstakingly and secretly recorded but that their doing so was illegal and actually criminal and could subject them to liability, penalties and even a potential counterclaim should they decide to file suit against their employer.

It’s at this point that the conversation usually takes on a panicked tone (theirs; not mine) as I explain that Illinois is what is called a two-party consent state.  This means that a conversation cannot be recorded unless all parties to the conversation consent to the recording.  Recording a workplace conversation without the proper consent violates the Illinois Eavesdropping statute.

Illinois has long had an eavesdropping statute on the books and the previous version of the law was considered one of strictest in the country.  For a brief and shining moment in 2014 the Illinois Supreme Court ruled the old law was unconstitutional but then the Illinois legislature quickly fixed that by revising the language of the statute and making it more narrow.   The narrowing of the statute unfortunately did not effect what we see in our practice which is the recording of harassment, discrimination or discipline.  Those conversations, so long as they are taking place in private, require all parties consent.

The bottom line is that recording a workplace conversation will get you nothing and could cost you a lot.  It is never worth the risk.  Instead, it’s best to take copious notes during these conversations and then use those to prove your claim.