RECORDING WORKPLACE CONVERSATIONS IN CANADA VERSUS THE UNITED STATES

By Eric Kay and Sara Jodka There has been a recent trend whereby one party to a workplace conversation secretly records it and then attempts to use it as evidence against the other party. Typically, but not always, the recording party is the employee. The law in Canada allows one party to a conversation to make a recording of a conversation without the other party consenting to the recording or even knowing that the recording is taking place. The only limitation on this right to record is that the recording party must be an active participant in the conversation rather than just a witness to a conversation taking place between other parties. The upside for an employee who is secretly recording workplace conversations is that such recordings can provide evidence of abusive or improper behaviour on the part of a co-worker, a supervisor or management. The downside of engaging in such recording is the loss of confidence or even animosity that may result when the recording is discovered or disclosed to others. Depending upon the province of employment and whether the employer is a federally or provincially regulated employer, a provincial privacy act or the Federal Personal Information Protection and Electronic Documents Act may impact the collection, use and disclosure of personal employee information by way of a recording. In the United States, it is not illegal in most...

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