Secretly recording others in the workplace, while not inherently illegal, can still get you fired
Special to The Globe and Mail
Do you have the right to secretly record your coworkers or boss? Does it matter if you are only doing so to protect yourself from perceived mistreatment at work or from fear of imminent dismissal?
In Canada, it is not a criminal offence to record a conversation you are part of. Armed with this knowledge, some workers assume that they have the legal right to record their discussions, for whatever reason they choose. While they may not be breaking the law, making secret recordings is not necessarily a good idea. Most employers find the notion of being stealthily recorded deeply unsettling. If discovered, they will usually treat that behaviour as a breach of trust and cause for immediate discharge.
Unsurprisingly, these issues have popped up in more and more lawsuits. A trio of recent Canadian court cases provides some much needed guidance.
In a 2022 British Columbia decision, the Court upheld the discharge of an accountant after he admitted to making hundreds of secret recordings of his own meetings and conversations at work, which he claimed were to address a grievance over his compensation and alleged discrimination. The Court accepted that he was making the recordings to address his genuinely held concerns, but found that his behaviour was nonetheless inappropriate as the recordings often contained personal and sensitive information of his colleagues that he knew would offend them and transpired over the course of several years. The Court concluded that the recordings were contrary to the company’s code of conduct and the employee’s professional obligations as an accountant, which held him to a higher standard of responsibility.
In another 2022 case from Alberta, the Court came to the opposite conclusion when it determined that secret recordings made by an employee were justified because the relationship was strained, and the company was acting inappropriately when it changed the terms of the employee’s job and suspended him without pay. In that case, the Court found that the employee was protecting himself from an employer’s abuse. In that context, the recordings were not offside.
More recently, an employer tried to have an ex-employee’s wrongful dismissal case tossed out after it learned, during the course of his lawsuit, that he made secret workplace recordings. In finding in favour of the employee, the Court reaffirmed that secret recordings, while sometimes unethical or distasteful, are not inherently illegal or automatically cause for discharge without severance. However, the Court ruled that a distinction should be drawn between situations where an employee makes secret recordings disingenuously, or to catch an employer doing something wrong, versus making recordings to protect themselves from a genuine threat or workplace concern.
If you are considering making a covert recording at work, you should first pause and consider why. These recent court decisions make clear that the situation and background matters – if a recording is made in response to genuine mistreatment, such as harassment, discrimination or some other unaddressed and ongoing concern, it may be justified. However, if it is seen as a tactic to undermine your employer or to create an opportunity for you to advance a disingenuous legal claim, it could quickly backfire if your employer or colleagues find out.
Second, relying solely on your own interpretation of the situation is not a good idea. Employers, coworkers or judges may not agree with your rationale for making the recordings to begin with, as this involves a subjective consideration of your perceived concerns and whether they are legitimate or insincere. You should first seek an opinion from experienced legal counsel to assess if there is a viable legal claim that requires documentation or proof in the form of audio recordings or whether there are less intrusive alternatives to protecting your interests.
Your employment contract and any applicable workplace codes of conduct or policy handbooks should also be carefully reviewed. If there are no express prohibitions on making recordings, employers will have far more difficulty treating your behaviour as cause for discharge, without first providing sufficient warnings or severance.
You should also take account of your seniority and status in the workplace. More senior employees, particularly those in key management roles may be viewed as fiduciaries. These are essentially workplace “role models” who have heightened obligations toward their coworkers and employers to place the company’s best interests above their own. In these situations, having a very good reason to make an audio recording still may not offset a legal duty to act in unison with your employer.
What you do with the recordings matters. Keeping them tucked away and used only for the sole purpose of assisting you to resolve a dispute will be viewed differently than publishing the recordings online or sharing them with third parties. In addition, the recordings could contain sensitive confidential information which could expose you to liability if improperly shared or otherwise disclosed.
Finally, there is another practical reason why you should tread carefully, even if not breaking any criminal laws. Workplace relationships require trust and an implicit duty of good faith and fair dealing, which cuts both ways. Secretly recording your employer or colleagues, if discovered, is likely to destroy their trust in you and limit or even end further opportunities with your employer. If that matters, then you should re-evaluate your decision.
Ultimately, a secret recording can be a legal safeguard, but the risks should be fully considered.
Daniel A. Lublin is a partner at Whitten & Lublin, representing clients in workplace legal disputes. He can be reached at [email protected].