Can I Secretly Record Conversations At Work? What Employers and Employees Need to Know

*An asterisk in the table above indicates that this State has a jurisdiction-specific modification that does not fall neatly within the one-party or all-party consent framework.

As shown above, most states follow the one-party consent rule, meaning recordings are allowed as long as one party to the conversation, including the person recording, consents. Federal law also follows this approach (18 U.S.C. Sec. 2511).

For example, Wisconsin is a one-party consent state. Wis. Stat. § 968.31 states: “it is a felony to record an oral or telephone communication without the consent of at least one party, or with the intention of committing a crime or a tort. Illegal recording may also give rise to civil liability.”

Conversely, a minority of states require all parties to consent before recording a conversation. These are referred to as "all-party consent" states. California and Illinois are two prominent examples.

Under California law, it is a crime to "use an electronic amplifying or recording device to eavesdrop upon or record a confidential communication without all parties' consent" (Cal. Penal Code § 632). The California Supreme Court defines a confidential conversation as one where the parties have a reasonable expectation of privacy. Flanagan v. Flanagan, 41 P.3d 575 (Cal. 2002).

Illinois law also requires all parties to consent if the conversation takes place in a setting where there is a "reasonable expectation of privacy." (IL St. Ch. 720 Sec. 5/14-1).

Watch Out for State-Specific Nuances and Considerations.

Many states have specific nuances that do not fit neatly into the one-party vs. all-party consent framework. It is important to look closely at the statutes in your jurisdiction and consult a local attorney to understand the applicable details. The table above serves as a general framework at this point in time (as statutes can change) and a starting point for further research. Additionally, Vermont does not appear to have a statute directly addressing this issue.

Some states treat in-person video or audio recordings differently than recordings taken over the phone (or potentially recordings taken over Zoom or other video-conferencing technology).

Can Employers Implement a “No-Recording” Policy at Work?

Especially in one-party consent states such as Wisconsin, employers may consider implementing a policy  prohibiting secret audio or video recordings in the workplace. That is, even though state law technically allows secret recordings for a participant, an employer may want to turn its workplace into an all-party consent space by including a “no-recording policy” in its employee handbook.

But are these policies allowed?

In recent years, courts and administrative agencies have examined when “no-recording” policies are permissible—and when they might not be. The risk of “no-recording” policies is that, when they are too broad or do not have any exceptions, courts have found such policies infringe employees’ ability to engage in “protected concerted activity” under the National Labor Relations Act.[2]

For example, Courts have found no-recording policies that prohibit all video or audio recordings, regardless of context, violated the NLRA. Whole Foods Mkt. Grp., Inc. v. Nat'l Labor Relations Bd., 691 F. App’x 49, 51 (2d Cir. 2017); T-Mobile USA, Inc. v. Nat'l Labor Relations Bd., 865 F.3d 265, 274 (5th Cir. 2017).

If an employer terminates an employee or issues other discipline based on an overbroad no-recording policy, they may face potentially serious consequences, including liability to pay back wages to the employee and the negative publicity of having a policy deemed illegal.

Recent NLRB Decisions Are a Warning to Employers.

Recent decisions from the National Labor Relations Board (NLRB) have underscored that employers must be very cautious, both in terms of drafting no-recording policies and making employment decisions when employees violate the no-recording policies.

Consider the following case from Philadelphia, where the NLRB held on February 13, 2023, that Starbucks’ decision to terminate two employees in part because of the employees’ secret recordings violated the NLRA. Starbucks Corp., 372 NLRB No. 50 (Feb. 13, 2023).

Two Starbucks workers began meeting with their co-workers to discuss problems with their store manager, including contemplating seeking union representation. The same two employees were then part of an in-store demonstration demanding changes to the employees' working conditions, such as removal of the store's manager, greater managerial accountability for discrimination based on race, disability, or LGBTQ+ status, and early implementation of the Philadelphia Fair Workweek Ordinance.

During this time, the two employees secretly recorded conversations with their supervisors and Starbucks management. Starbucks ultimately terminated both employees, and the employees filed a complaint that Starbucks had violated their rights under the NLRA.

In response, Starbucks made two primary arguments that it did not commit any violations: (1) the employees violated Starbucks policy by secretly recording conversations at work; and (2) the employees violated Pennsylvania state law—since it is an all-party consent state—by secretly recording at work without permission from all parties involved.

The 3-member panel of the NLRB rejected both of Starbucks’ arguments.  

First, the NLRB made factual findings that Starbucks actually knew the two employees were taking secret recordings all along, and never took any adverse actions against the employees based on those recordings. Thus, Starbucks’ claims that it had terminated the employees for taking secret recordings did not hold water, since the company had knowledge of the recordings for a long time prior to actually terminating the employees.

In reaching this first finding, the NLRB stated that, under prior precedent, an employer is prohibited from applying a facially neutral policy in a manner that would restrict protected NLRA Section 7 activity. Thus, “to allow [Starbucks] to use its no-recording policy as a shield to prevent reinstatement of [the two employees] would effectively permit the [Starbucks] to impose another adverse consequence on the [employees] in response to and in retaliation for their protected activities.”

Second, the NLRB found that the recordings are protected under the NLRA, even though Pennsylvania is an all-party consent state. The NLRB stated that employees engage in “protected workplace recordings when such recordings were made to police the parties' collective-bargaining agreement or preserve evidence for use in a future proceeding, including a possible grievance.” Further, secret recordings can be protected “when made to document meetings held by an employer regarding unionization and in an effort to collect and compare information a union needs to respond to arguments advanced by the employer at the meeting about unionization.”

In this case, the employees testified that they recorded meetings with management because:

- They had “concern that [Starbucks] was seeking to retaliate against her protected activities, and she wanted to preserve ‘a neutral . . . source of what was said’ in her conversations with management.”

- They wanted to “preserve evidence of what was said in the meetings with management and so he would have proof if [Starbucks] attempted to discipline him for pretextual or retaliatory reasons.”

These reasons were sufficient for the NLRB to find that the employees' secret recordings constituted activity protected by Section 7 of the NLRA.

Further, the NLRB held that the preemption provision of the federal NLRA enacted by Congress means that vindication of the employees’ rights under the NLRA trumps concerns that the employees violated state laws. Specifically, the decision states as follows:

Assuming the Pennsylvania State law cited by [Starbucks] would apply to the workplace recordings by [the employees] and that [Starbucks] has an interest in protecting the privacy concerns implicated by the no-recording law, enforcement of the State law would be preempted here. In this regard, when a state purports to regulate conduct that is arguably protected by Section 7 or an unfair labor practice under Section 8, “due regard for the [NLRA] requires that state jurisdiction must yield.” Thus, since the workplace recordings by [the employees] constituted activity protected by Section 7, Garmon preemption would preclude invocation of the State law against them for these protected activities.

Starbucks Corp., 372 NLRB No. 50 (Feb. 13, 2023).

In the end, Starbucks was required to reinstate both employees to their positions with the company, and required to pay each employee back pay for the entire duration of employment they would have enjoyed but-for the terminations.

Employers Face Increased Scrutiny After the 2023 Starbucks Decision.

This 2023 Starbucks case has major implications, especially for employers in states with two-party consent laws. Following this decision, employers may face liability under the NLRA if they terminate an employee who takes secret recordings in violation of state law, where those recordings are made for the purpose of documenting alleged labor law violations or preserving evidence for a possible future legal dispute.

More recent cases have already used the 2023 Starbucks decision to increase scrutiny on no-recording policies.  

For example, in another case involving Starbucks, the NLRB held that management’s decision to prohibit an employee from recording a meeting with management was unlawful. It found that based on the earlier Starbucks decision and other applicable precedent, such recordings are allowed for protected activities, such as to document “inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related action.” Starbucks Corp. & Chicago & Midwest Reg'l Joint Bd., Workers United/ Serv. Emps. Int'l Union, No. 14-CA-306625, 2024 WL 1832227 (Apr. 25, 2024). In this case, the employee had observed other employees receiving discipline for wearing a pro-union shirt, and the employee was documenting whether he would face similar violation for wearing a pro-union shirt. Id.

Likewise, in an arbitration award under California law—an all-party consent state—the arbitrator found that the employee was engaged in protected activities when the employee took secret recordings at work. The recordings were protected and permissible even though the employer had a no-recording policy, and even though California law prohibits secret recordings without consent. In the Matter of Arbitration between, ENCORE GROUP (USA), LLC, IATSE LOCAL 122., 2025 WL 727450 (S.D.Cal.).

The employer was required to reinstate the employee to his prior position and “make him whole,” meaning to pay back wages.

While the change in Presidential Administration at the federal level this year has already significantly re-vamped the NLRB composition, these recent decisions are still a reminder to employers that no-recording policies must have exceptions for protected activities. Likewise, employers must be highly cautious before terminating an employee based on a no-recording policy or even for violating a state law recording requiring all-party consent.

Best Practices for Employers Implementing No-Recording Policies.

Employers that intend to implement a legally permissible no-recording policy should consider the items below. To increase the chances that a no-recording policy will be upheld and enforced, the policy should:

- List the purposes for implementing the no-recording policy. Courts are less likely to invalidate a no-recording policy if the policy explains the valid reasons it is in place. These may include: (a) promoting open employee communication in the workplace; (b) protecting employees’ (and customers’) privacy interests; (c) protecting the company’s proprietary and confidential information from unauthorized disclosure; and (d) reducing the company’s legal liability.

- Limit the scope of the policy.  Avoid blanket prohibitions. Instead, clarify exceptions, such as recording for documenting unsafe conditions or workplace grievances.

- Include an NLRA Section 7 carve-out. Include an express carve-out that the policy does not limit employees from engaging in “protected concerted activities under Section 7 of the NLRA,. By doing so, courts or administrative agencies may be more likely to find the policy legally permissible.

- Tread carefully when enforcing the no-recording policy, even in all-party consent states. Do not assume that the employee’s secret recording was unlawful because you are in an all-party consent state. Gather additional information about the purpose of the recording, if possible. If you determine that other enforcement actions against the employee are necessary, have a consistent, tiered plan for escalating consequences.

If you have any questions about implementing a no-recording policy or other employment-related issues, please contact Kai Hovden at (608) 252-9391 or ckh@dewittllp.com, Steve DiTullio at (608)252-9362 or sad@dewittllp.com, or another DeWitt LLP Labor & Employment Law attorney.