Press Pause on Recording in the Workplace

Press Pause on Recording in the Workplace

The Law Offices of Fern Trevino often receives calls from prospective clients who possess “evidence” in the form of recorded conversations with a boss or a co-worker. Though it may seem a recording is the best and clearest proof of wrongdoing, recording a conversation without consent could have serious legal consequences in Illinois.

Up until 2014, Illinois required the consent of all parties to a conversation. Any recording without consent was illegal and categorized as a Class 4 felony and, for a second or subsequent offense, a Class 3 felony. 720 ILCS 5/14-4. Recordings obtained in violation of the statute were not only inadmissible in court, but also carried a potential prison sentence.

However, in People v. Clark and People v. Melongo, the Illinois Supreme Court ruled that the statute, 720 ILCS 5/14-1 et seq., was overly broad and therefore unconstitutional. The court took issue with the fact that all conversations, no matter the expectation of privacy, required consent from all parties.

As such, the legality of recorded conversations now hinges on whether the parties to the conversation had a “reasonable expectation of privacy.” Unfortunately, the amended statute provides limited guidelines to determine when an expectation of privacy is reasonable. Aside from the location of the conversation, whether the conversation was intended to be private and the purpose of the recording, other considerations may affect whether parties to the conversation could reasonably expect that the conversation would be private.

Though you may feel that you are rightfully protecting your interests by recording discussions with a manager or a co-worker, we strongly recommend that you contact an attorney before recording a conversation without the consent of the participants in the conversation.