Can an individual employed by a neighbor legally record a conversation with the “employer” in an attempt prove breach of contract?

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Can an individual employed by a neighbor legally record a conversation with the “employer” in an attempt prove breach of contract?

A verbal agreement had been established with a neighbor regarding child care services that have been provided. The contract has been one-sided and the “nanny” has been underpaid and worked in excess of a 40-hour workweek without just compensation. In addition, annual leave benefits have not been provided per the agreement and there is no physical contract to prove the breach of contract. The goal is to record an admission of the contract for legal use, if necessary.

Asked on September 1, 2011 under Employment Labor Law, Tennessee

Answers:

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

Answered 10 years ago | Contributor

TN is a "1-party consent" state. Basically, what this means is that as long as the person recording a conversation is a party to it, then the recording is legal. If the person is not a party to the conversation, then recording that conversation is prohibited.

That having been said, the law makes an exception for "in-person communications"in which the parties do not have a "reasonable expectation of privacy". So for example, it would be legal to record a conversation in a public place where it might reasonably be overheard.

So depending on where you are planning this recording matters. If it is within someone's home make sure that you are a party to the conversation. If it is on a siewalk then, arguably, there is no expectation of privacy. So recording, even if you are not participating in the conversation, may well be legal.


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