Can You Record Conversations at Work in Virginia?

A major hurdle for plaintiffs in employment law cases, particularly in employment discrimination, sexual harassment, and retaliation cases, is producing enough evidence to support their claims. Neither civil courts nor the Equal Employment Opportunity Commission will simply take a plaintiff at their word. Some of the strongest evidence in cases like these is documentary evidence, such as recordings of conversations and phone calls that show the defendant engaged in potentially unlawful behavior. However, recording conversations at work is legally tricky, and employees who are considering doing so should consider speaking to a Richmond employment lawyer first. 

Consent Is the Name of the Game 

All 50 states and the District of Columbia allow employees to record conversations at work under certain conditions. Some states are one-party consent states, while others are all-party consent states. In one-party consent states, recording a conversation is legal so long as one party to the conversation consents to the recording, and that party may be the same party as the one who is making the recording. All-party consent states require all parties to the conversation to consent to the recording. 

Virginia is a one-party consent state. Under Virginia Code § 19.2-62, it is not a criminal offense for a person to record a conversation where that person is a party to the conversation or has the consent of one of the parties to the conversation. Thus, it is not unlawful in Virginia for an employee to record a conversation with their boss or coworker. However, it is unlawful in Virginia for an employee to record a conversation among other people without first obtaining consent from at least one of the participants. 

Violation of § 19.2-62 is a Class 6 felony punishable by imprisonment, a fine, or both. 

Limitations on the Use of Recorded Phone Calls as Evidence

Virginia Code § 8.01-420.2 limits the use of recorded phone calls as evidence in civil proceedings. Such recordings may not be used unless: 

1. All parties to the conversation were aware it was being recorded or
2. The portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct

Issues to Consider Before Recording a Conversation at Work

Just because recording conversations at work (under the right circumstances) is legal does not necessarily mean you should do it. Many employers have workplace policies and procedures that prohibit employees from making recordings at work. So you might not go to jail, but you could lose your job. Also, keep in mind that while Virginia may be a one-party consent state, the person you are talking to may be located in an all-party consent state. The rule of thumb in such situations is to follow the law of the most restrictive state.  

Discuss Your Concerns With a Richmond Employment Lawyer 

If you’re thinking about recording conversations at work, you should consider discussing your situation with an attorney first. For more information, please contact a Richmond employment lawyer at Pierce / Jewett by calling 804-502-2320 or using our online contact form.