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Secret Recordings at Work? Privacy and Recordings in Texas

Everyone or nearly everyone has a cell or mobile phone that enables photography, audio recording, and video recording with little effort. But what about being recorded without your knowledge –particularly when you are at work? Can you legally be recorded without your consent or knowledge? The old-fashioned term “wire-tapping” (in our wireless age) is still used and there are many state and federal laws regarding “wire-tapping”.

Can city employees be recorded (whether secretly or not) while working and have those recordings posted on YouTube? The answer to the latter question was answered in a blog written by Carl Allred in our office titled “Video Activism”. Similar behavior in a private workplace is subject to invasion of privacy claims, however. Secret recordings by employees are increasingly an issue, in whistleblower cases and also under Title VII of the Civil Rights Act of 1964, as well as in retaliation cases.

Most states permit one-party consent for recordings; in other words, only one participant in the conversation or interaction being recorded is required to be legal. Texas is a one-party consent state; therefore, it is a crime to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents per Texas Penal Code Section 16.02. Obviously, the “one party” is the person doing the recording. This would be impacted by the recording of a conversation (telephone) that involves participants in more than one state as this would involve the laws of the other states, so if recording, consent should be obtained from all participants. Texas Penal Code does not allow recording of personal conversations when the parties to the conversation have a reasonable expectation of privacy, so if you are at work and are having a conversation behind closed doors in your office or in the restroom or in any scenario where you expect privacy, a recording is likely illegal. If you work in a public place where there are a lot of people around you and there is no expectation of privacy, you can likely be legally recorded.

There are states that have “two-party consent” laws, for example: California, Connecticut, Florida, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington. There are numerous exceptions and special provisions in these laws, most notably if you record information regarding a serious crime, or public safety. The law is unclear or subject to legal interpretation in Nevada and Hawaii, and Vermont has no statute regarding consent to recording conversations. Don’t hold me to this list as every state’s laws are subject to interpretation by the Supreme Court of that state, so despite the laws of the state, the highest court can write differing opinions regarding the law in that state. These states will provide greater rights to employers to prohibit secret recordings at work either by management or employees. Courts and administrative bodies in most states will find that obtaining secret recordings is a protected activity under “whistleblower” laws. Generally, these secret recordings may be protected because (1) the impact of an actual or perceived legal duty to report on the part of the whistleblower and (2) public policy laws, rules, and regulations, prohibit interference with lines of communication. The Texas Whistle Blower Act is found in Chapter 554 of the Government Code and provides protection for public employees that report violations of law by their employer.

Another privacy issue involves access to a computer. Most courts in Texas have ruled a computer is a cell phone in line with Chapter 33 of the Texas Penal Code, Computer Crimes. Under Texas Penal Code section 33.02(a) a person commits an offense if he accesses a computer without the effective consent of the owner, and there is a civil cause of action available in the Harmful Access by Computer Act set forth in the Texas Civil Practice & Remedies Code Chapter 143. Just a reminder but an employee normally is not the “owner” of the computer or cell phone used whether in the private or public employment sector.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.

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