Recording A Conversation In A “One Party Consent” State

Individuals often record conversations in the workplace when they believe that they are being discriminated or retaliated against or harassed and want proof of the poor treatment. With the relative ease of recording conversations on a smartphone (an individual no longer needs to tape a microphone to his or her body under clothing or smuggle an old-fashioned tape recorder in a briefcase), one question that invariably comes up is whether a recorded conversation can be used against a former or current employer.

The answer to this question depends on the state in which the conversation takes place. New Jersey is what is commonly referred to as a “one party consent” state. This means that as long as “one party consents” to the recording of the conversation then it is not illegal. The consent may come from the person doing the recording and there is no obligation to let others know that they are being recorded. This applies to both in-person conversations and telephone conversations.

However, it is illegal to place a recording device in a location to record a conversation in which the recording party will not be present. In this situation, there is no consent because (a) the party recording the conversation is not a party to the conversation and (b) none of the other parties are aware that they are being recorded so they are unable to give their consent.

Note, however, that the issue of whether a recording is admissible at trial or in a hearing is a complex one that takes into account many factors, one of which is whether the recording was lawfully made. Even if a recording is lawfully made, a judge may exclude the recording if there are doubts about its authenticity or if the contents of the recording are highly prejudicial.

It is important to consult with counsel beforehand because recording a conversation in violation of the law could subject you to civil penalties or criminal prosecution. If you have any questions about such issues, please contact the Law Offices of Damian Christian Shammas, LLC to discuss.