Workplaces are becoming increasingly monitored, with employers seemingly tracking their workers’ every move. From keystroke monitoring and video cameras to badge swipe data collections, employees are becoming more and more used to being watched, or at least willing to put up with it.
But there are still some important employee protections for working people in Washington and other states, especially when it comes to secret recordings of meetings. Washington law bans employers from recording private conversations without first getting the consent of everyone involved.
At Justice Law Corporation, our Washington employment lawyers help people understand their rights on the job and take action to protect them. We are seasoned employment attorneys who have dedicated our careers to assisting working people and their families. We are proud to have a strong track record of success in wrongful termination, pay, discrimination, and other cases.
It can come as a shock to people when they find out that their employers have been secretly recording them at work. Here is what you need to know about your privacy rights on the job and what you can do if you find yourself in this situation.
Was it a ‘Private’ Conversation?
Washington is often called a “two-party consent” state when it comes to secret recordings, whether they are made in offices, on worksites, or in a wide range of other settings. That means that both parties to a private conversation must consent to it being recorded.
The truth, however, is that Washington is an “all-party consent” state. Each person involved in a conversation must OK recording. If five people are in a meeting that is being recorded, all five must consent.
Washington’s privacy law limits recordings both by individuals and businesses or entities. It generally applies to employment settings, as there is no exception for workplace safety or efficiency purposes.
A person whose private conversation was unlawfully recorded can file a claim against those responsible, seeking damages, attorney fees, and court costs. Courts generally will block the recordings from being used as evidence against the person who was recorded without their consent.
Crucially, however, the law only bans the recording of private conversations without the consent of all parties. Courts across the state tend to look at four factors to determine whether a particular conversation is private.
- Participants’ expectations: Did the people in the room reasonably believe the conversation was just between them?
- Subject matter: Discussions about an employee’s performance, discipline, medical leave, pay, or a complaint filed with HR are the kinds of topics people reasonably expect to stay private.
- Location: A closed-door office or a private video call suggests privacy; a company-wide town hall in the cafeteria does not.
- Number of participants: Who else was present or could overhear? The more people involved, the weaker the privacy expectation.
The determination typically comes down to the specific circumstances of the conversation. That said, these kinds of discussions tend to be considered private:
- Disciplinary meetings
- Performance reviews
- HR investigation interviews
- Small team meetings to discuss confidential matters
Large all-hands meetings, open training sessions, and public presentations probably will not be deemed private. That is because participants cannot reasonably expect that remarks made to a big audience will stay confidential.
What ‘Consent’ Means
Employers in Washington can lawfully record meetings all day long, as long as they tell people first. What they cannot do is record private conversations without first getting consent.
That does not mean employers need to get employees to sign forms agreeing to being recorded. Instead, Washington’s privacy law considers consent to occur when one party to a conversation announces to the others in a reasonably clear way that the discussion is about to be recorded. The announcement itself should be captured on the recording. If everyone hears the announcement and keeps talking, the law treats that as consent.
Consent can also be implied in certain situations, especially with respect to remote workers. If you know a recording is happening and you participate anyway, you have effectively consented. That includes remote meetings via Microsoft Teams or Zoom in which a “this meeting is being recorded” notice is posted or announced audibly at the beginning of the meeting.
Some employers try to get blanket consent from workers to record meetings with general policies, like “the company may monitor communications,” that are buried deep in employee handbooks. Whether this is enough to be considered consent depends largely on the specific situation. The clearer the notice is about what may or may not be recorded and how, and the closer it is in time to the actual recording, the more likely it may be considered consent.
Do Not Secretly Record Your Employer
The privacy law works both ways: You cannot record private conversations at work without first getting the consent of everyone involved in the discussions.
Workers who think they are being set up understandably may feel the urge to hit “record.” But secretly recording your boss or coworkers puts you at the same risk of liability as anyone who does it to you. Plus, the recording is not likely to be admissible.
That is not to mention that it could be grounds for firing. Although there are some limited protections under labor and employment laws, the better option is to take detailed notes during or immediately after the meeting and send a follow-up email summarizing what was said. Or simply announce that you would like to record and get agreement on the record.
Our Washington Employment Lawyers Can Help
If you believe that you are being discriminated against on the job, whether it is by being passed over for a position, underpaid in your role, or in other terms and conditions, you do not need to go it alone. A Washington employment lawyer at Justice Law Corporation can help you evaluate your claim and understand your rights and options.
Contact us at 360.207.0000 to schedule a free consultation with a Washington employment lawyer.
