Recording workplace conversations: set parameters and know your rights as an employer
With the ever-increasing abundance of technology and apps, these days, it’s pretty easy to record a conversation without others knowing. While it may be done innocently enough (e.g., ease of referring to it later, not having to take notes, supporting memory challenges), it’s important for both employers and employees to know the risks in doing so. These risks range from erosion of trust to termination of employment and legal action (primarily with respect to privacy legislation). While in some cases you may legally be allowed to record conversations, it doesn’t mean you should.
Under Section 184 of the Criminal Code of Canada, it’s legal for individuals to record conversations so long as at least one of the parties consents. As odd as it may seem, the person who wants to record the conversation merely needs to consent to themselves. This is otherwise known as the “one party consent” exception and applies regardless of how many people are involved in the conversation. An equally strange exception, however, is that while it’s okay to record a conversation using a cell phone or personal device that you’re carrying (and may be keeping out of view), it’s not legal to do so by hiding a recording device in a room or area where the conversation will take place.
Can employees record conversations at work?
We’ve all seen movies and TV shows and/or heard about people recording conversations in the workplace or elsewhere. While it is generally legal for individuals to record conversations under the Criminal Code of Canada, that doesn’t mean it’s okay to do so in a work setting. When employees record conversations without another person’s knowledge or consent (be it another employee or their manager), they undermine the fundamental trust relationship and integrity between employer and employee, and defy the employer’s professional conduct, confidentiality, and privacy policies.
If an employee records a conversation with “malicious intent”, or breaches the organization’s confidentiality or privacy policies, their employer may have justifiable reason to discipline or terminate them. To illustrate, Recording Law cited a 2017 Manitoba court case in which the employee was terminated for cause after having secretly recorded several conversations with management. Although the cause was related to harassment claims against him, the court specifically mentioned the employee’s cell phone recordings, stating that it “does amount to a breach of his confidentiality and privacy obligations” to his employer – in addition to “a breach of his personal code of conduct”.
Can employers record conversations with employees?
As is the case for recorded conversations in general that fall under the “one party consent” exception, the short answer is yes. However, as Recording Law indicates, doing so must comply with either federal privacy legislation, PIPEDA, or the relevant provincial privacy legislation, such as PIPA in Alberta or BC. While legislation may differ slightly among provinces, most specify that employers can collect, use, and disclose employee personal information (which includes recorded conversations about work circumstances in a work setting) if doing so is “reasonable for the purpose of establishing, managing, or terminating an employment relationship.”
In BC, when an employer uses such information to make an employment decision, they must keep that information for at least one year after use. In Alberta, privacy legislation requires that employers notify employees that they’re recording a conversation and how the collected information may be used.
To make the situation even more complicated, if employers (or employees) intend to or think they may have to use recorded conversations to form evidence in a legal case, that evidence may not be allowed. There is no clear answer here, as it depends on the circumstances, the proceedings, and so forth.
If you intend to record conversations with employees, communicate your policy/parameters on it (i.e., within your employee handbook), indicating that you may do so in certain situations and when notification is given – so long as it aligns with privacy legislation. That policy should indicate, within the context of workplace/work-related interactions, the limits on an employee’s privacy and how it may/may not be used. Keep in mind, however, that policy or no policy, the landscape in this area is multi-faceted. If employees believe that every conversation is or could be recorded, as Monster indicates, it could be seen as creating a hostile or toxic work environment. Employees could also file a complaint under privacy legislation, if they have reason to believe your policy goes against that legislation.
The best way forward for mutual trust
In either case above, at minimum, trust can be eroded leading to irreversible damage to the relationship. For employees, this could even be seen as constructive dismissal. If recordings will be used in a meeting where emotions may be high, for example, consent should be given by all parties at the start of the meeting (and consented to on the recording). Consent can be explicit (where both/all parties state their consent) and/or implied (if there’s an obvious indication of recording).
That said, always keep in mind the inherent power imbalance that exists between a manager/leader/ person of authority and an employee.
Despite the increasing use of technology, the good old-fashioned pen and paper and/or having a third-party witness to conversations is generally still the best approach. However, where recordings do make sense, as noted by employment lawyer, Madelena Viksne, keep in mind the following:
- Consider what other steps you have taken or could take instead
- Be clear on what you intend to use the recording for
- If it doesn’t involve you, don’t record it
- Don’t stop and start the recording, and don’t edit it after the fact
Can team/staff meetings, video conferences, client meetings be recorded in the workplace?
While, depending on the context, there may not necessarily be the same expectation of privacy in a group or team meeting, it’s still important to seek appropriate consent from people when recording any sort of meeting where they may be recorded. In an all team/staff meeting, or video-conference seminar, for example, where individual participants may be seen/heard, consent must be sought from all participants. This may involve letting participants know at time of meeting request/sign up that the session will be recorded in addition to a banner across the screen when they join the meeting, and have it stated clearly that recording is in progress once the meeting begins (they don’t need to explicitly sign off on it). This gives them the choice of keeping cameras off and choosing not to speak, if they wish.
As outlined by PIPEDA, this is a similar process as for recording customer phone calls. When businesses wish to record calls, it’s necessary to inform callers at the beginning of the call, commonly via automation, prior to reaching a customer service agent. This notification must indicate that the call will be recorded and the purpose for which the recording will be used.
Jouta’s HR Consultants can help you set and communicate appropriate parameters about recording conversations in the workplace.