Is it legal for an employee to do audio recording without notice?

My cousin had an issue at her store, she found out now the company is going to go back 2 months and look at video and audio, she was shocked as she had no clue there was any audio being recorded. As a former employee at the same company I was also shocked as I was never told either. She’s in fear that maybe she said something or in discussing with a customer that could get her fired. I was wondering the legality of hidden recordings at work. I’ve found only information on video which is 100% in employees favor and understandable.

Asked on August 30, 2019 under Employment Labor Law, South Dakota

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

SD is what is know as a "1 party consent" state. This means that at least 1 party to a converstion much agree to its being recorded for such a recording to be legal. Accordingly, if neither the employees or customers knew of the recording, then it was illegal. However, there is an exceptiion. Conversations taking pace in public areas have no "expectation of privacy", therefore no consent need be obtained. So it depends on just where the audio equipment is located. If it is in a lobby or other common area, then anyone can record, permission or not; if conversations are in private offices or the like, then consent is needed.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

SD is what is know as a "1 party consent" state. This means that at least 1 party to a converstion much agree to its being recorded for such a recording to be legal. Accordingly, if neither the employees or customers knew of the recording, then it was illegal. However, there is an exceptiion. Conversations taking pace in public areas have no "expectation of privacy", therefore no consent need be obtained. So it depends on just where the audio equipment is located. If it is in a lobby or other common area, then anyone can record, permission or not; if conversations are in private offices or the like, then consent is needed.


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