With the rise of remote working in the past couple of years, virtual work meetings, whether over video or phone call, have become a common occurrence. With that comes the issue of recording work calls. In this post, we address the possible risks involved when an employee records work meetings, either surreptitiously or with consent.
Can an employee legally record a work call?
It is technically legal in Canada for an employee to record a conversation they are a part of, and the employee does not attract criminal liability if they do so surreptitiously, as long as they were a part of the call. However, Courts across Canada have found that surreptitious recording can justify termination for cause.
Surreptitious recordings can lead to termination for just cause
Surreptitious recording has justified cause for termination mainly because it has been found by courts to be an act that breaches an employee’s relationship of trust towards their colleagues or employer, as well as a breach of the employee’s confidentiality and privacy obligations, and a potential breach of an employer’s Code of Conduct.
Most recently, the British Columbia Supreme Court found in Shalagin v Mercer Celgar Limited Partnership, 2022 BCSC 112, that Mercer (the employer) properly terminated its 12-year employee and senior financial analyst, Roman Shalagin, for cause because Shalagin had surreptitiously recorded numerous conversations with colleagues over a number of years. The recordings included confidential company information, personal information and sensitive family issues about an employee. Shalagin’s main arguments were that he recorded the conversations to help him learn English.
The Court found that the employee’s conduct was a breach of the confidentiality and privacy obligations he had toward his employer, a breach of his employer’s Code of Business Conduct and Ethics, as well as a breach of his professional obligations as a Certified Chartered Accountant. The Court found that Shalagin knew that his fellow employees would be uncomfortable with the recordings, and that he knew it was wrong, if not legally, at least ethically. The Court found that there were other ways Shalagin could have improved his English without compromising his colleagues’ privacy.
What if the employee discloses the recording?
It is reasonable, for the reasons outlined above, for employers to require employees to obtain consent before recording calls. However, even if an employee obtains this consent, the act of recording company calls could put the employee and/or the employer in a difficult position when the calls contain sensitive, proprietary or personal information.
Allowing employees to record in the workplace may put confidential business information at risk. For example, an employee may capture trade secrets, conversations about business strategies or conversations about proprietary information. Even if the employee records the proprietary information with consent and without malicious intent, the information could be compromised, for example, if they were to lose their recording device or if it were produced in litigation. In allowing the employee to record this information, employers lose control of what happens to the information.
If the conversations contain personal information, the recording may put the employee or the employer at risk of breaching the Personal Information Protection and Electronic Documents Act (PIPEDA ).
Employers who have dealings with European clients should also be mindful of the General Data Protection Regulation (GDPR), which is a set of rules designed to give EU citizens more control over their personal data and applies to organizations outside of the EU which offer goods or services to customers or businesses in the EU.
Takeaways for employers
It is likely that remote and virtual workplace meetings are here to stay. To address the risks that recordings can create, we recommend that employers have a policy in place that clearly prohibits recording in the workplace without the consent of all involved in the conversation. Employers may also want to consider and outline certain situations where recordings are prohibited altogether.
If you have questions about recording in the workplace, get in touch for a consultation!
