We are regularly asked by employee and employer clients about secretly recording conversations (audio or video) at work. Some common questions we get are:
- Is it legal to record conversations at work?
- I think I am going to get fired, should I record the meeting?
- What can I do with the recording, if someone is lying about what was said in the meeting?
With a smartphone in everyone’s pocket, it can be done with the press of a button, but should you?
Is recording conversations legal?
In Canada, it is not a crime to secretly record conversations as long as you are an open participant in that conversation. This is different from recording a conversation in which you are not an open participant. For example, planting your smartphone in an office on record, and then leaving the room and recording conversations between others while you are not there is not legal. That type of recording is not legal and could have criminal consequences. Don’t do it!
Secretly recording conversations is risky
Assuming we are only talking about recording conversations in which you are openly participating, in the employment context, should you do it? It is risky and here are some of the reasons why:
- If you are an employee, recording conversations at work could be a violation of your employment confidentiality/privacy obligations, agreements or policies. Depending on the circumstances, you could be disciplined or even fired for making the recording. Even if your employer does not have policies against recordings, making secret recordings could be taken by your employer as a reason to fire you for cause. This is because of the trust that is needed in an employment relationship.
- If you are an employer, you have obligations under privacy legislation to notify your employees that you will be collecting their personal information and the purpose of doing so before you do so. Making secret recordings could be the basis for claims against you including claims for constructive dismissal, breach of privacy and depending on the circumstances, aggravated or punitive damages.
- Whether you are an employee or an employer, if you end up in court, you might have to produce the recording, even if it doesn’t help your case.
So, think long and hard before secretly hitting record at work. If you think you need to make secret recordings, this is a sign that there is a problem. You should consider whether there are more upfront strategies for dealing with the situation. If you have already secretly recorded a meeting and are involved in an employment dispute or expect to be, an employment lawyer can help you decide whether and how the recording can be used.
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