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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 16118
Experience:  Licensed Texas General Practice Attorney
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Employer monitored workspace and listened in and recorded

Customer Question

Employer monitored workspace and listened in and recorded phone conversation without my consent. I live in oklahoma
Submitted: 9 months ago.
Category: Employment Law
Expert:  ScottyMacEsq replied 9 months ago.

Thank you for using JustAnswer.

I'm sorry to hear about your situation. Can you tell me what your specific question is?

Customer: replied 9 months ago.
Is it legal to monitor my workspace and listen in on my personal calls.I disclosed an illegal activity at work and five days later was placed under surveillance. Is this legal or violates my rights
Customer: replied 9 months ago.
I believe once the call was identified as being personal listening should have stopped.
Expert:  ScottyMacEsq replied 9 months ago.

Did they ever inform you that they were going to listen in / record prior to doing so?

Expert:  ScottyMacEsq replied 9 months ago.

Hello?

Customer: replied 9 months ago.
Sorry my phone died. No they did not.
Expert:  ScottyMacEsq replied 9 months ago.

How did you find out that they were recording you then? Did they present you with a recording of something you had said and that was the first time you learned that they were recording?

Customer: replied 9 months ago.
Several employees informed me.
Expert:  ScottyMacEsq replied 9 months ago.

I see. First of all, your employer recording a phone call (personal or business) is legal so long as they tell you that they will do so. Consent is implied as soon as you know and continue to make use of the phone for any reason. The reason for this is that employment is "at will". At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion. And furthermore it means that you have no obligation to stay there or continue to work for them. So once you do know that they're recording (or even may record) your conversations, and continue with them, those are going to be determined to be consented to.

The conversations that were recorded prior to you learning about the recording would be illegal to be recorded. Oklahoma law states that such recording without consent or without being recorded by one of the parties to the conversation would be illegal. Whether you'd have a civil case is unlikely, as it does not appear that you have any quantifiable damages (a specific dollar figure) that you can point to as losses resulting from this breach of privacy. Yes, it is a breach, but to have a case you need to point to a specific dollar figure. Otherwise, at best you'd have "nominal damages" (an award of $1 or $10 to show that you won the case, but couldn't prove your actual damages resulting from the employer's behavior).

As it's also a crime, you could report it to the police. But the main problem here is what's known as "police discretion". That is, the police have discretion as to what cases they take and investigate, as well as the cases that they refer on to the prosecutors. One issue here is proof, in that they would have to prove that you didn't know that they were recording. Your employer can say that you were told, and in such a matter it's a he said / she said situation. As a criminal conviction requires proof beyond a reasonable doubt, it's unlikely that the prosecutor would get a conviction (unless there was some other smoking gun that would show affirmatively that you didn't know).

And again, Oklahoma is an at-will employment state. You can be fired for pretty much any reason, including filing a criminal complaint against your employer. So doing so would be a risk. Now you might not want to work with them in the first place, so that's certainly up to you. But understand that without a showing of actual damages that resulted directly from the recording and without showing proof that you were not informed that you may be recorded, it's unlikely that they'll face any criminal or civil penalties for doing so.

I want to make it abundantly clear that I think it's unethical, immoral and illogical to record without your consent (as well as illegal). But for the reasons that I stated above, it's likely that they'll get away with it.

I know this is probably not what you wanted to hear, but it is unfortunately the way it is. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (good or better). Thank you, ***** ***** luck to you!

Customer: replied 9 months ago.
Wow. You covered quite a bit of stuff.
Expert:  ScottyMacEsq replied 9 months ago.

I do try to cover everything, as much as possible. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button, if applicable. If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service as OK Service or higher. It's only then I am credited.

Expert:  ScottyMacEsq replied 9 months ago.

Did you have any other questions before you rate this answer?

Expert:  ScottyMacEsq replied 9 months ago.

Again, it is very important that you actually rate my answer, otherwise I get no credit nor do I get paid for the time and effort spent on your question.

Expert:  ScottyMacEsq replied 9 months ago.

Sp are you there? Please note that I am still here, awaiting your response or rating... (please note that rating closes this question out, so if there's nothing else, please rate it so that I can assist other customers that are waiting for answers to their questions)

Expert:  ScottyMacEsq replied 9 months ago.

I see that you have not responded in some time. Please note that this question is still open until you rate it. I believe that I have answered your question, but if you have any other questions, please let me know.If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, ***** ***** good luck to you!

Expert:  ScottyMacEsq replied 9 months ago.

Hello?

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