Dallas Employment Lawyer Blog
Dallas Employment Trial Lawyer Harjeen Zibari
Oftentimes, workers will come to me insisting that they have the evidence that will definitively prove their case: a recording. However, this can open a whole other can of worms that the worker did not even anticipate, and sometimes, that recording becomes more trouble than it’s worth.
In today’s workplace, it’s easier than ever to hit “record” on your phone when a meeting or conversation is happening. Some employees think of recording as a way to protect themselves—especially if they suspect harassment, discrimination, or unfair treatment. But before you press record, it’s important to understand that recording conversations at work can be legally risky.
One-Party vs. Two-Party Consent States
The biggest legal distinction comes down to whether you live in a one-party consent state or a two-party consent state (sometimes called “all-party consent”).
One-party consent states: You can legally record a conversation as long as you are part of it. You don’t need to tell the other person. Most U.S. states, including Texas, fall into this category.
Two-party consent states: Everyone being recorded must agree to the recording. If you record someone without their consent in these states, you could face civil or even criminal penalties.
This means that if the other party is in a two-party consent state, secretly recording your boss or co-workers is generally illegal unless they know and agree. Even if what they’re saying could really help your employment case—there could still be an extraneous criminal charge against you as a result.
This is something workers really need to be mindful in the wake of a post-Covid workplace, where coworkers can be working all over the country. So even if you are making the recording in Texas, a one-party consent state, you will still be violating consent laws by secretly recording a conversation with someone in a two-party consent state, like California or Florida.
Workplace Considerations
Even if recording is technically legal in your state, your employer’s policies may prohibit it. Many companies have handbook rules banning secret recordings, and violating those rules can lead to discipline or termination—even if the recording itself doesn’t break the law. So, unfortunately, employees may sometimes give a hostile employer a “non-prohibited” reason for the termination, which is recording a workplace conversation against their policies. And when you are embarking on an employment discrimination and/or retaliation claim, the employer will search for any and all reasons they can to justify its unlawful actions against you—don’t give them the ammo or the out!
Evidentiary Issues
Just because the recording exists does not make it admissible evidence. Courts or agencies can sometimes view secret recordings as less credible, even if they appear selectively edited. And, juries have reported to attorneys during post-trial interviews that they lose trust in a witness who admits to secretly recording conversations.
When Recordings Can Help
There are situations where recordings can be valuable—for example, if you are documenting harassment, threats, or illegal conduct. Employees sometimes use recordings to support claims with the EEOC, labor boards, or in litigation. However, a lot of recorded workplace conversations can sound innocuous and become more trouble than they are worth. But this should only be done with careful thought, ideally after speaking to an attorney about the best strategy.
Safer Alternatives
If you want to document workplace issues without the risks of recording:
Take detailed notes of dates, times, and statements made.
Follow up in writing after problematic conversations (“As we discussed earlier today, you stated that…”).
Report concerns through HR or compliance channels.
Consult an employment attorney before creating recordings.
Bottom Line
Recording conversations at work may seem like an easy way to protect yourself, but it can backfire if you don’t understand the law. The rules vary depending on your state, your employer’s policies, and the context of the recording. If you’re considering making a recording, check whether your state requires one-party or two-party consent—and strongly consider getting legal advice before taking action. Contact me in Dallas or one of my talented colleagues in Houston or Austin today.