Secretly recorded conversations – the collision of “technification” and mistrust in the workplace

February 21, 2018 Piccolo Heath LLP Employee Relations, Employment/Labour Standards, HR and Technology, HR Policies and Procedures, Human Resources, Privacy and Security

As the workplace has changed over the years, so too have the issues. With the advancement of technology, recorded conversations and related implications have become an issue in the workplace.

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When I first started practicing law as an employment lawyer, there were still typewriters in the office. At that time, modernizing the workplace meant buying a computer and a dot matrix printer. Over the years, my advice has had to keep pace with the modern workplace. With the rise of social media and more sophisticated technology at work, the issues that my clients have presented to me have become more complex.

Recently, I have encountered a number of situations involving recorded conversations in the workplace, and have again had to catch up to the use of personal audio and video devices in the workplace. As mistrust between employers and employees grows, so does the potential for secretly recorded conversations in the workplace.

Is it a crime?

In Canada, it is not a crime to secretly record conversations as long as the individual doing the recording is an “open participant” in that conversation. For example, placing your smartphone on a desk while recording a conversation you have with a co-worker is not criminal. However, if you left the room and recorded a conversation between your co-worker and a manager, that is a criminal act.

What are the risks of recording in the workplace?

Assuming the person recording is an “open participant”, what are the risks if the recording takes place in the workplace?

Consequences if you are an employee

Many employees record office discussions because they believe they are being harassed or bullied and want to have evidence. Recording conversations at work could be a violation of confidentiality/privacy obligations, employment agreements or code of conduct policies. You may be disciplined or even fired for making the recording. Even if your employer does not have policies against recordings, making secret recordings may give rise to just cause for a termination.

Consequences if you are an employer

Some employers have surveillance cameras in the workplace, but they do not record audio because there is no need for it. However, employers may wish to record audio in the workplace or install secret video cameras to capture employee outbursts or misconduct. The concern with such secret recordings is that they may capture personal information, infringe on privacy rights or erode the trust necessary in an employment relationship. Regardless of the jurisdiction in which you operate, it is rarely appropriate or permissible to record audio or video in the workplace without your employees’ knowledge. Making secret recordings of your employees could be the basis for claims for constructive dismissal, breach of privacy and depending on the circumstances, aggravated or punitive damages.

Consequences applicable to employers and employees

If you end up in court or another legal proceeding, you will be required to produce all documents relevant to the issues in dispute. Whether or not you intend to rely on the recording, if the recorded discussions are relevant, you must produce the recording, even if it isn’t helpful to your case. Some litigants choose to use the recordings to pressure the other party to settle, but often, the disclosure of the recordings fosters mistrust between the parties, which hinders or delays resolution of the dispute.

If you’re an employer concerned about preventing this type of behaviour from taking place in the workplace, you should consider instituting policies and/ or employment contract terms to deter the behaviour or eliminate it altogether. Or, if as an employer you’ve already discovered that an employee has made secret recordings, there are steps that can be taken to contain publication or distribution, if that is a concern.

If you have already secretly recorded a meeting or a conversation at work whether you thought you could use it personally, or whether you thought the company could make use of it, and if you are involved in an employment dispute or believe you might be, you should obtain legal advice before making use of it.

While I would never have been able to predict at the time I started practicing employment law that I’d be writing about and advising clients on the risks associated with secret recordings in the workplace, it is a reality that is now a regular part of the modern workplace.

By Patrizia Piccolo, Partner

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Piccolo Heath LLP

Prominent Canadian lawyers Patrizia Piccolo and Jennifer Heath have come together as Piccolo Heath LLP, Canada’s newest employment law firm. With more than 30 years combined expertise, the firm was founded with the purpose of delivering outstanding legal counsel and dynamic, client-focused service. Piccolo Heath LLP is focused on guiding clients through the legal landscape to determine the best solutions to their unique issues. The firm is well-versed in current employment-related case law and statutes, but is also highly sensitive to the practical impact of the law on both employers and employees. Read more.