As a general rule, under Ohio and federal law, it is not a criminal offense to secretly record conversations, including conversations that take place at work, so long as one of the participants is aware the conversation is being recorded. R.C. § 2933.52; 18 U.S.C. 2511(2)(d). With advances in technology, secretly recording conversations has become an easy and simple way for employers and employees to gather evidence of wrongdoing at the workplace. However, Ohio employees need to be aware of issues that are raised when an employer or employee secretly records conversations on the job.
Employer policies that prohibit employees from recording conversations are generally enforceable, and an employee may be terminated for violating that policy. Jones v. St. Jude Med. S.C. Inc., 823 F.Supp. 699 (S.D. Ohio). Even absent a policy, Ohio courts have upheld the termination of employees for secretly recording conversations at work on the grounds that “at-will” employment permits employee termination “for any or no reason.” Briner v. Nat’l City Bank, 1994 Ohio App. Lexis 581. Moreover, disobeying a supervisor’s order to cease recording conversations is cause for termination and the denial of unemployment compensation benefits on the basis of insubordination. Helfrich v. Administrator, Ohio Bureau of Empl. Servs., 1997 Ohio App. Lexis 4953. Also, lying about secretly recording conversations at work is just cause for discharge for dishonesty. City of Sandusky v. Nuesse, 2011 Ohio 6407.
When an employer secretly records employee conversations at work, invasion of privacy issues are raised. However, an employer may monitor and record conversations at work (including telephone conversations) so long as the employee has no reasonable expectation of privacy under the circumstances in which the recording takes place. Olson v. Holland Computers, 2007 Ohio 4727. An employer’s policies and office practices may be sufficient to eliminate any reasonable expectation of privacy by an employee at the workplace. Brannen v. Bd. of Educ., 144 Ohio App. 3d 620.
Key point: recording conversations without at least one of the participant’s knowledge is a felony under Ohio and federal law
Key point: the rules of discovery in a civil action can be used to require an employee to produce secretly recorded conversations possessed by the employee in their entirety
Key point: violating company policies prohibiting the recording of conversations can constitute just cause for termination of employment or other disciplinary action
Key point: the rules of evidence in a civil action will determine the admissibility of a secretly recorded conversation
There are times when an employee may feel compelled to secretly record conversations at work. In these situations, there are many advantages to consulting with an attorney as to what action is appropriate. Folkerth and Folkerth has substantial experience helping employees address difficult employment situations and advising employees confronted with unlawful activity at the workplace.
Disclaimer: This article has been prepared by attorneys employed by this firm and is provided for general information purposes only to permit you to learn more about our firm, our services and the experience of our attorneys. The information presented is not legal advice, may not be applicable or may be contrary to the laws of certain jurisdictions, is not to be acted upon as legal advice, may not be current, and is subject to change without notice.