Can an employer record your work conversations without your consent?

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Can an employer record your work conversations without your consent?

My boss fired my friend and I because he said that when he was out town he pulled us up on his computer and heard us talking about him. What I don’t understand they approved my friend for unemployment but not me, and we got fired for the same reason. Is it legal to records us without us knowing it and turn around and fired us for what he heard?

Asked on August 3, 2010 under Employment Labor Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

First, if you did not have employment contracts, you are employees at will. That means, unfortunately, what  it sounds like: your employment is literally at the will, or whim, of your employer, and you may be fired at any time, for any reason.

Second, you say the boss "pulled us upon on his computer."  Depending on what that means, you may or may not have a claim for invasion of privacy. Generally speaking, employers have a great deal of latitude to monitor employee usage of company machines, servers, intranet, email, etc. So if you were communicating using company computers, for example, the employer may be able to monitor that communication.

However, that said, it may still be an invasion of  privacy if there was no monitoring policy in place putting employees on notice that they did not have any legitimate privacy expectations in that use. Certain ways of intercepting communications could violate anti-wiretapping rules. And while employers may video tape employees in many contexts (obviously, not in rest rooms or the equivalent), I do am not certain that audio monitoring generally in office space is permitted--so if the boss somehow caused the microphone on thhe computer to record what you were saying in the office, when you weren't specifically using the computer as a communications device, there could possibly be liability there.

As for how you and your friend could be treated differently (re: unemployment): as a general matter, employers may treat employees differently, but not  if they are doing so for a discriminatory reason (e.g. race, sex, age over 40, disability, religion).

You should probably consult with an employment attorney with whom you can share all of the details. Many will provide a free, or at least inexpensive, initial consultation.


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