Is video taping legal when proving an harrassment claim?

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Is video taping legal when proving an harrassment claim?

I had suspicions about a co-worker talking about me out of character. I set my tablet to video record and left it on my desk while on my lunch break. My suspicions were correct, and much to my surprise, she was discussing the contents of my personal file with another co-worker. After advising administration, we met with her, and she denied it. Is what she did public disclosure of private facts? Is my videotape allowable for proof? Do I have a case?

Asked on November 28, 2011 under Employment Labor Law, New York

Answers:

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

Answered 9 years ago | Contributor

Video recording, without mass publication or commercial intent, typically requires no permission. However, recording someone's voice without their consent may be illegal. NY is what is know as a "1 party consent state". This means that at least 1 party to the communication must consent to its recording. So as long as the person who is doing the recording is a party to the conversation, it is legal; if the person doing the recording is not a party to the conversation then recoding it is a violation of the law.

The only exception would be if those being recorded had no "reasonable expectation of privacy". In other words, where you record matters. If it's in a private office the parties would assume that any communications would be private, so consent (of 1 party) must be obtained. If the communication takes place in a crowded lunchroom and is capable of being overheard, then no consent is needed as there is deemed to be no expectation that the conversation would be kept private.

Based on your facts its not clear just where your desk is located. So consent may have had to have been obtained. Additionally, your employer may take a dim view of such a recording, legal or not. This could  potentially put your job in jeopardy. At this point, you should consult directly with an employment law attorney in your area. Once you have gone over all of the details of your case they can best advise you further (on both the recording and your harassment claim).


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