Please note that the content of this post does not constitute legal advice nor does it create an attorney/client relationship and is for general informational purposes only.
I often get the question as to whether an employee should record conversations with their employers. Often, the answer I give is “NO!” The law in this area is very nuanced and depends upon a complex web of state and federal law. Recording your employer could open you up to criminal and civil liability in Washington.
Washington is generally a two-party consent state. That means that multiple parties must be aware that a recording is being made. Some conversations may be exempt if there is no reasonable expectation of privacy, but you will want to be sure to check with counsel prior to taking any such actions.
There are some limited exceptions to the recording consent rule, and sometimes if the recording is made due to “concerted activity” to advocate for benefits or protections of the workforce, the recording may be proper under federal law, which shifts frequently on the propriety of such actions. However, this is a very difficult analysis that is very fact specific, and most employees would be better off not incurring the risk that accompanies recording any conversations.
In general, the proper and best approach is to document the conversation with yourself and others, and sometimes to send a written summary of the conversation to your supervisor and let them know if anything is incorrect or misstated, to ask them to correct it. By doing this, you are often preserving the record of events and inviting them to comment or correct any errors or misunderstandings, which may be powerful evidence if admissible.
Ultimately, whether any recording is lawful, and whether it is admissible as evidence in a case, turns on numerous factors which are often very difficult to predict how a court may rule on such evidence. In some cases, an illegal or improperly recorded conversation could give the courts grounds to ignore any evidence of the conversation altogether, which could be very prejudicial to a case if the remarks would be otherwise admissible under the evidence rules (such as a statement made by a party opponent which can survive hearsay exclusions).
Ultimately, it’s often best to consult with an attorney to discuss the legal implications of recording a conversation, and to err on the safe side of not recording such conversations.
This article was written by Joseph Wagner, an employment attorney serving employees in the State of Washington. It should not be construed as legal advice or creating an attorney client relationship. For more information, please reach out to us to schedule a consultation to apply to the facts of your situation.