Our smartphones are pocket-sized media hubs, with instant access to countless apps that provide many services — including those that can capture audio recording without much difficulty. As an employment lawyer, I’ve spoken to many people who have made use of this technology in a workplace setting for various reasons, or have wondered about the consequences of doing so in the future.
What are an employee’s limits when it comes capturing a conversation at work? Is it even legal? Here are the answers to some of the most common questions about recording conversations at work.
Can I record my conversations at work?
When it comes to recording discussions in a Canadian workplace, as long as you are part of the conversation, you do not need the other person’s consent.
We refer to this concept as one-party consent, which means that it is legal to record a conversation without the other party’s consent only if you are a participant in that conversation, you consent to the conversation being recorded and you were intended to receive the communication. This is true whether the conversation is in person or over a phone call, and whether it takes place with your co-worker, your manager or your employer.
Can I secretly record a conversation that I am not part of?
You can’t secretly record a conversation between two other people if you are not a part of the conversation, not an intended participant or not contributing to the conversation. For instance, it isn’t legal to record a conversation you overhear between two other co-workers in the break room. This is true even if you are the topic of discussion between them.
Should I record my conversations?
Just because something is legal does not necessarily mean that you should do it. The courts have suggested that secretly recording your employer without their knowledge or consent may be grounds for a termination for cause.
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Trust and honesty between employer and employee are fundamental elements of the employment relationship. Depending on the situation, if the employee’s conduct irreparably damages the trust in the relationship through deceitful or dishonest behaviour — such as making a recording without their employer’s consent — it is possible that the employer could assert that the worker is guilty of serious misconduct and fire them with cause.
When is it a good idea to record conversations at work?
The employee’s reasons for recording a conversation with their employer will help determine whether the recording was legitimate. For example, if an employee is brought into a termination meeting, and emotions are running high, they may choose to record the conversation in order to have a record of what was said by their employer, including their entitlements and the reason for their termination.
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If an employee is being bullied or harassed by either their employer or a co-worker, recording their interactions with the perpetrator may be a reasonable way for the employee to gather evidence of the toxic workplace.
What should I keep in mind when recording conversations?
If you do decide make a recording at work, you absolutely should not stop and start the recording during the interaction. Doing so could make it hard to prove your intention was honourable. This is also true if you edit the recording after the conversation has taken place.
The conversation you record should also be directly related to your own employment, and you should not record things that do not apply to you, or matters related to other employees, their personal information or anything else unrelated to your personal working relationship with your employer.
Whether the courts see a recording as reasonable depends on the context in which the recording takes place.
Before you record a conversation with your employer or co-worker, it is critical to consider why you are recording it, what it is you have concerns about that have led you to consider the recording to be necessary and what you intend to do with the recording. In determining whether it will be helpful to have the recording, you should know that the act of recording the discussion could potentially lead to your employer terminating you for just cause.
Rather than recording your employer or co-worker, there may be other options available. For example, if you are experiencing harassment, it is a good idea to email yourself as soon as possible after the situation arises. Include as much detail as you can about the interaction and send it to yourself so that the records are timestamped.
In a situation like a disciplinary or termination meeting, you can write your own notes during the conversation and follow up with questions afterward through email. You should always ask for a copy of any performance review or termination letter to be provided to you.
In the case of a termination for just cause, you are entitled to know the reason for the termination. In the case of a termination without cause, your employer does not need to provide a reason to you, but you must be given a proper severance package, which could be as much as 24 months’ pay.
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You do not have to sign any termination package on the spot, and your employer must provide you enough time to speak to an employment lawyer before you sign.
Are you experiencing an issue in the workplace, and not sure how to handle it?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Madelena Viksne is an employment lawyer and associate at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.