We get it—with just a tap of a button on your smartphone, you've caught HR admitting to discrimination, harassment, or failing to accommodate your disability. But in Maryland, recording a phone call without the consent of every party on the call or in the meeting is a felony, and can have serious negative consequences for your employment case.
Maryland's Wiretapping Law
The federal wiretapping law, 18 U.S.C.A. § 2511, allows for the recording of phone calls with at least one party's consent. But Maryland's Wiretap Act, Md. Code Ann., Cts. & Jud. Proc. § 10-401, et seq., requires the consent of all parties to a communication for it to be lawfully intercepted (i.e., recorded). While Maryland is often referred to as a "two party consent" state, a more accurate description would be an "all party consent" state—because if even a single party to the communication has not consented to the recording, that's a no-go.
Maryland's Wiretap Act requires the consent of all parties to a communication for it to be lawfully intercepted (i.e., recorded).
In our view, the Maryland Wiretap Act is simply out of touch with modern technology. When the Act was passed in 1968, you had to work really hard to surreptitiously record a phone call (think suspicious white vans and banks of physical audio tapes). But today, recording a phone call can be accomplished with the push of a button on almost any smart phone. It's all too easy for an employee in the midst of being wrongfully terminated to press the "record" button—completely unaware of the potentially severe consequences.
Consequences
Let's get right to the scary stuff: recording a phone call in Maryland without all parties' consent is a felony offense, and carries a jail term of up to 5 years and a fine of up to $10,000. Md. Code Ann., Cts. & Jud. Proc. § 10-402(b).
recording a phone call in Maryland without all parties' consent is a felony offense, and carries a jail term of up to 5 years
But, in practicality, recording a phone call with HR is unlikely to land you in a jail cell in Maryland—your local State's Attorney's Office has bigger fish to fry. The real consequence is to the viability of your employment discrimination, harassment, or wrongful termination case. The recording itself will be inadmissible (i.e., you can't use it against your employer in court), and you may have given your current or former employer just the excuse they need to terminate your employment. See State v. Maddox, 69 Md. App. 296, 301 (1986). Keep in mind that most comprehensive employee handbooks prohibit employees from surreptitiously recording in the workplace.
most comprehensive employee handbooks prohibit employees from recording in the workplace
Let's talk about what you should do if you need to memorialize a workplace conversation, and what to do if you've already made a recording.
Solutions
First, if you've already recorded a phone conversation in the workplace—do not delete it. Destroying evidence will only make the situation worse, and, even if the recording itself is inadmissible, your future lawyer may find the content of the recording useful. On that note, you should immediately contact an employment lawyer to discuss what impact the recording may have on your case.
if you've already recorded a conversation in the workplace, do not delete it
Second, we recommend the following workaround if you need to make a record of an important conversation with HR (or a manager, supervisor, etc.):
During the meeting or phone call, take detailed contemporaneous notes;
Immediately following the meeting or phone call, turn your contemporaneous notes into an email recounting the conversation; then
Send the email to the participants (and/or HR), and ask for any corrections (if the participants don't correct anything in your email, they've "adopted" your version of events).
Here's what a short version of a memorialization email could look like:
Hi [PARTICIPANT],
Thanks for taking the time to meet today, [DATE]. To recap our conversation, you told me that [COMPANY] is denying my telework accommodation request because [REASON]. Please let me know if I've misunderstood or missed anything.
Sincerely, [YOUR NAME]
Lawyers have been using letters and emails like this for generations to create a record of important meetings. Keep the memorialization email short, cordial, and stick to the facts (don't argue). Assuming that the other participants don't respond with corrections, you've created a record that's almost as good as an audio recording, and not only will it strengthen your employment case, it'll keep you out of the big house!
If you need to talk to a Maryland employment lawyer, contact us today. We're here to help.
