Key points
- New York's Penal Law defines wiretapping and mechanical overhearing as recording by someone who is not a party to the conversation, without a party's consent, so a participant who records is outside those definitions.[1]
- Recording a conversation you are not present at, without the consent of at least one party, is mechanical overhearing, and eavesdropping is a class E felony in New York.[1]
- Under the federal Wiretap Act, it is not unlawful for a private person to record a communication the person is a party to, unless it is intercepted for the purpose of committing a criminal or tortious act.[2]
- In New York courts, a party who destroys evidence it had an obligation to preserve can be sanctioned, so an existing recording should be kept intact.[3]
- A private employer in New York that monitors employees' telephone, email or internet use must give prior written notice on hiring.[4]
In New York, a person who takes part in a conversation and records it is outside the Penal Law's definitions of wiretapping and mechanical overhearing, the acts that make up the crime of eavesdropping.[1] This is what people mean when they call New York a "one-party consent" state. Federal law is similar: under the Wiretap Act it is not unlawful for a private person to record a communication the person is a party to, unless it is intercepted for the purpose of committing a criminal or tortious act.[2]
Those two rules answer one question: whether making the recording is a crime under New York State or federal law. They do not settle everything else, including another state's law, an employer's own rules, or what happens to the recording later. Those limits are covered below.
What does New York's eavesdropping law say?
Under New York Penal Law § 250.05, a person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication, and eavesdropping is a class E felony.[1] Section 250.00 of the Penal Law defines the first two terms:
"'Wiretapping' means the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment."[1]
"'Mechanical overhearing of a conversation' means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment."[1]
Both definitions describe an outsider. Wiretapping is done by someone "other than a sender or receiver" of the call. Mechanical overhearing is done by someone "not present" at the conversation, and without the consent of at least one party. A person who is a party to the conversation and records it is therefore not within either definition.[1]
| Situation | How New York's Penal Law definitions apply |
|---|---|
| You record a meeting with your manager that you are sitting in | You are present and a party, so the recording is outside the definition of mechanical overhearing.[1] |
| You record a phone call you are on | You are a sender or receiver of the call, so the recording is outside the definition of wiretapping.[1] |
| You leave a device recording in a room and walk out, or record a conversation among other people from outside the room | The recording is made by a person not present; without the consent of at least one party, it is within the definition of mechanical overhearing.[1] |
| Someone who is not on a call records it without the consent of either person on it | That is within the definition of wiretapping.[1] |
The definitions turn on whether the person recording is a party and whether a party consented. They do not turn on who the other person is, so the analysis is the same whether the other party is a coworker, a supervisor or someone in human resources.[1]
What does federal law say?
The federal Wiretap Act has an express exception for participants. Under 18 U.S.C. § 2511(2)(d), it is not unlawful under that law for a person not acting under color of law to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties has given prior consent.[2]
The exception has a limit written into the same sentence. It does not apply if the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any state.[2] A tortious act is a civil wrong, as opposed to a crime.
| Question | New York State (Penal Law) | Federal (Wiretap Act) |
|---|---|---|
| May a participant record? | A party who records is not within the definitions of wiretapping or mechanical overhearing.[1] | Not unlawful where the person recording is a party to the communication.[2] |
| May a non-participant record? | Not without the consent of at least one party; unlawfully doing so is eavesdropping, a class E felony.[1] | The exception applies only where the person is a party or one of the parties has given prior consent.[2] |
| Stated limit on the participant rule | The definitions cover recording by a person who is not a sender, receiver or person present.[1] | No protection where the purpose is to commit a criminal or tortious act.[2] |
What if the other person is in another state?
This page states the New York State and federal rules only: the Penal Law definitions and the Wiretap Act exception described above.[1][2] Other states have their own recording laws, and they can differ from New York's. A phone call or video meeting that includes someone located outside New York can raise the question of which state's law governs the recording. This page does not answer that question; it is one to raise with a lawyer before recording a call that crosses state lines.
Does the eavesdropping law cover video?
The wiretapping and mechanical overhearing definitions are about overhearing or recording communications and conversations.[1] Images are addressed by a different New York Penal Law section. Unlawful surveillance in the second degree, a class E felony, includes intentionally using or installing an imaging device to surreptitiously view or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom or shower, for no legitimate purpose and without the person's knowledge or consent.[5] When workplace sexual harassment is also a crime describes that offense.
What about my employer's no-recording policy?
The statutes above deal with criminal law. Whether an employer may adopt a rule against recording at work, and what it may do to an employee who breaks one, is a separate question that this page does not answer. As a practical matter, read the handbook before recording and raise the question with a lawyer first, especially if the handbook has a no-recording rule.
One related point from federal retaliation law: the EEOC's position is that opposing discrimination is protected only if the manner of opposition is reasonable, that the activity is not reasonable if it involves an unlawful act, and that whether the manner is unreasonable is a context- and fact-specific inquiry.[6] The page on what counts as protected activity covers that standard.
Can my employer record me?
New York State handles employer monitoring through a notice rule. Under Civil Rights Law § 52-c, a private employer with a place of business in New York that monitors or intercepts employees' telephone conversations, email or internet use must give prior written notice on hiring to all employees subject to monitoring, obtain the employee's written or electronic acknowledgment, and post the notice conspicuously.[4] The law does not apply to the State or its political subdivisions.[4] See employer monitoring, email and personnel files.
What should I do with a recording I already have?
Keep it exactly as it is. In New York courts, a party seeking sanctions for destroyed evidence must show that the party who controlled it had an obligation to preserve it, that it was destroyed with a culpable state of mind, and that it was relevant; where the destruction was intentional or willful, relevance is presumed.[3]
Practical guidance.
- Keep the original file. Do not trim, edit or rename it in a way that changes its date information.
- Write down the date, the place, who was speaking and how the recording was made.
- Store a copy on a personal device or account, not on a work system.
- Do not post it or pass it around the workplace.
- Tell your lawyer it exists and how it was made.
Assume the other side will eventually hear it. In a New York court case the parties exchange evidence under a rule calling for full disclosure of all matter material and necessary, and in federal court discovery reaches nonprivileged matter relevant to a claim or defense.[7] A recording captures your own words as well as the other person's.
A recording is one kind of record among several. Dated notes, saved messages and a follow-up email summarizing a conversation often serve the same purpose with fewer open questions; see building a record: notes, messages and documents. For putting a concern in front of the employer, see how to report harassment or discrimination and what happens in an HR investigation.
What people get wrong
- "Recording at work is always legal in New York." The participant rule covers conversations you are part of. Recording a conversation you are not present at, without a party's consent, is within New York's definition of mechanical overhearing, and the federal exception is withdrawn where the purpose is to commit a criminal or tortious act.[1][2]
- "I need my boss's permission." Under New York's Penal Law definitions and the federal Wiretap Act, the consent that matters can be that of one party, and a participant who records is a party.[1][2]
- "If it is not a crime, my employer has no say." The criminal statutes do not speak to workplace rules; see the section on no-recording policies above.
- "New York's rule follows me onto any call." Other states' laws can differ, and this page covers New York State and federal law only.
- "I can open my manager's email to get proof." New York's eavesdropping offense also covers unlawfully "intercepting or accessing of an electronic communication."[1]
More corrections of this kind are collected in New York workplace rights myths.
Common questions
Is it a crime in New York to record my boss without telling them?
Not under New York's eavesdropping law if you are part of the conversation. The Penal Law defines wiretapping as recording a telephone communication by a person other than a sender or receiver, and mechanical overhearing as recording a conversation, without the consent of at least one party, by a person not present. A person who is a party to the conversation and records it is not within those definitions.[1] That answers the criminal-law question only.
Can I leave my phone recording in a room after I walk out?
Not unless a party to the conversation has consented. Once you are not present, the recording fits New York's definition of mechanical overhearing: the intentional recording of a conversation, without the consent of at least one party to it, by a person not present. Unlawfully engaging in mechanical overhearing is eavesdropping, a class E felony under New York Penal Law § 250.05.[1] The participant rule covers only conversations you are actually part of.
Does federal law allow recording a conversation I am part of?
Generally yes, with one limit. Under 18 U.S.C. § 2511(2)(d), it is not unlawful under the federal Wiretap Act for a person not acting under color of law to intercept a wire, oral or electronic communication when that person is a party to it or one party has given prior consent. The exception does not apply if the communication is intercepted for the purpose of committing a criminal or tortious act.[2]
Can I record a phone or video call with someone in another state?
This page covers New York State and federal law only. Under those two laws, a participant who records is outside New York's eavesdropping definitions and within the federal one-party exception.[1][2] Other states have their own recording laws, and they can differ from New York's. A call that includes a person located elsewhere can raise the question of which state's law applies, and that is a question to put to a lawyer before recording.
Can my employer record or monitor my calls?
New York State regulates this by notice. Under Civil Rights Law § 52-c, a private employer with a place of business in New York that monitors or intercepts employees' telephone, email or internet use must give prior written notice on hiring, obtain the employee's written or electronic acknowledgment, and post the notice conspicuously. The Attorney General may enforce the law, and the maximum civil penalty is $500 for a first offense, $1,000 for a second and $3,000 for each one after that.[4]
Sources
- N.Y. Penal Law §§ 250.00(1)-(2), 250.05 — New York State Senate, Laws of New York
- 18 U.S.C. § 2511(2)(d) — Legal Information Institute, Cornell Law School
- Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543, 547-548 (2015) — New York State Unified Court System
- N.Y. Civ. Rights Law § 52-c*2 (the second of two sections numbered 52-c: "Employers engaged in electronic monitoring; prior notice required") — New York State Senate, Laws of New York
- N.Y. Penal Law § 250.45(1)–(4) — New York State Senate, Laws of New York
- EEOC Enforcement Guidance on Retaliation § II.A.2.b (2016) — U.S. Equal Employment Opportunity Commission
- N.Y. C.P.L.R. 3101(a), 3212(a)-(b); Fed. R. Civ. P. 26(b)(1), 56(a) — New York State Senate, Laws of New York