Poor Maxwell Smart—all he had was a shoe phone, with a rotary dial. Now we all have the James Bond equivalent of the latest recording devices at our fingertips or in our back pockets. But just because we have them, does it mean we can use them in the workplace? Whether to prove discrimination, harassment, or various other reasons, the recording of conversations is becoming more and more prevalent in the workplace. The 64,000 question—is it legal? The answer is not straightforward, it depends on a number of factors, including a myriad of applicable state and federal laws (note, the Federal Wiretap Act (18 U.S.C. 2511(2)(d)) is almost identical to New Jersey’s, described below).
In New Jersey, if you want to record a conversation which you are having face-to-face with a co-worker/supervisor/etc., you are permitted to record the conversation. The key here is you must be a party to conversation. On the other hand, if you placed a recording device in an office in an attempt to catch co-workers speaking about you, you are not a party to the conversation and you may not record it. If you do, you may be subject to civil and criminal penalties, unless one of the aforementioned parties gave their consent to be recorded, then the recording may be permitted. One important caveat under New Jersey law, the acceptable recordings described above are explicitly not permitted to be “…intercepted or used for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State or for the purpose of committing any other injurious act.” N.J.S.A. 2A:156A-4.
Further, this issue becomes more convoluted if you are recording a phone conversation between yourself and a party in another state. Just because it may be legal in your state does not mean it is legal in the other party’s state. To this end, it is important to remember these laws vary from state to state, for example New Jersey differs from New York.
At work, always communicate like you are being recorded because you might be!
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.