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Recording Workplace Conversations

There are a number of protected activities the law says you can engage in at the workplace without having to be afraid of your employer retaliating against you. These can include simply “opposing” any employment practice that is unlawful under Title VII of the Civil Rights Act (“Title VII”) or the Age Discrimination in Employment Act (“ADEA”), including unlawful discrimination based on race, age, national origin, gender, or religion. The law also protects you from being retaliated against for testifying, assisting, or participating in any manner in an investigation, proceeding or hearing under Title VII or the ADEA.

In addition, in both Kansas and Missouri, whistleblowing about certain illegal activity at the workplace is protected. If you are with a private employer in Kansas, this is limited to the “good faith reporting of a co-worker’s or employer’s serious infraction of rules, regulations, or law pertaining to public health, safety, and the general welfare, is an actionable tort.” Flenker v. Willamette Indus., Inc., 266 Kan. 198, 200, 967 P.2d 295, 298 (1998). If you are with a private employer in Missouri, the whistleblower protection is broader: Your employer cannot legally terminate or otherwise retaliate against you for “refusing to perform an illegal act or an act contrary to a strong mandate of public policy; reporting wrongdoing or violations of law or public policy by the employer or fellow employees to superiors or third parties; [or] acting in a manner public policy would encourage . . . .” Margiotta v. Christian Hosp. Ne. Nw., ED91466, 2009 WL 1851182 (Mo. Ct. App. June 30, 2009).

This does not include all of the legally protected activities you can engage in at the workplace. However, it does beg the question of how you can go about proving the discriminatory or other illegal activity that may be occurring at your place of employment. This becomes very important in a lawsuit, where often times it is difficult to prove your employer had a specific discriminatory or retaliatory intent.

Attorneys sometimes are asked if people can legally record conversations without the knowledge of the other participant to the conversation. The answer in both Kansas and Missouri at least is easy: If you are a participant to the conversation, you may legally record the conversation without knowledge of the other participants to the conversation. See Mo. Ann. Stat. § 542.402;K.S.A. 21-6101; State v. Wigley, 210 Kan. 472, 502 P.2d 819 (1972). However, you cannot record a “private” conversation between other people when those people have an expectation of privacy and you are not a party to the conversation. State v. Roudybush, 235 Kan. 834, 686 P.2d 100 (1984); Mo. Rev. Stat. 542.400(8).

The employer’s policies on this issue may be important. As a matter of caution, you should also always check your employer’s policies to determine if there is some policy against recording conversations. If there is such a policy, it may give the employer an argument that there is an expectation of privacy or provide the employer independent grounds to take adverse employment action against you. In any event, you should always consult with an attorney before moving forward.

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