A smartphone in every pocket means it’s easier than ever for employees to secretly record workplace conversations. Whether it’s a tense meeting with a supervisor or HR, or a casual conversation with coworkers, the ability to record those discussions with the tap of a button presents a real legal and operational challenge for employers.

In Virginia, the law may be on the side of the employee—at least in some situations. Virginia is a one-party consent state, meaning employees can often legally record workplace conversations without even notifying the other party. But just because something is legal doesn’t mean it’s risk-free—for employees or employers. This blog explores how Virginia’s one-party consent law applies in the workplace, the legal risks of employee-made recordings, and how employers can proactively protect their organizations.

Virginia’s One-Party Consent Law: What Employers Need to Know

Virginia Code § 19.2-62 defines the Commonwealth’s parameters on recording conversations. As a “one-party consent” state, it is generally lawful in Virginia for a person to record a conversation, as long as one party to the conversation consents to the recording. In practical terms, this means the employee can legally consent to and record their own conversations —even if the other person in the discussion has no idea that the recording is happening.

The law applies to oral, wire, and electronic communications, including phone calls and in-person conversations. Again, the key distinction is that at least one party involved in the communication must consent. If the recorder is participating in the conversation, that satisfies the one-party consent requirement.

It’s worth noting that federal law also follows a one-party consent standard, though in multi-state conversations, the rules can be far more complex, depending on which state laws apply.

The Legal and Cultural Impacts of Workplace Recordings

Even if it’s lawful for an employee to secretly record a conversation that doesn’t mean it’s harmless. Secret recordings in the workplace can have serious implications for employer liability and workplace culture.

Legal Risks

Secretly made employee recordings are increasingly being introduced as evidence in legal claims involving:

• Discrimination and harassment
• Retaliation
• Wrongful termination
• Wage and hour violations

Even if the employer is ultimately vindicated, the existence of a recording can complicate the defense of a case or create public relations issues if the content is shared outside the Company.

Confidentiality and Trust

Secret employee recordings can also breach employer confidentiality, particularly in regulated industries or workplaces where sensitive business or client information is routinely discussed. Employees may be subject to liability for recording protected information without authorization. Beyond the legal risks, the knowledge—or even suspicion—that conversations may be recorded can erode trust and damage workplace morale.

Can Employers Prohibit Recordings in the Workplace?

Yes—employers can prohibit recordings but must do so with care. A no-recording policy can be included in an employee handbook or internal communications policy. However, the National Labor Relations Act (NLRA) limits how far employers can go with a prohibition on workplace recording. The NLRA protects employees’ rights to engage in “protected concerted activity,” such as discussing working conditions or organizing with coworkers, and employees generally must be able to record discussions of that kind. If a no-recording policy is written too broadly, it may violate employee legal rights under the NLRA.

Key Case Example:

In Whole Foods Market, Inc., the National Labor Relations Board (NLRB), which enforces the NLRA, struck down the company’s blanket no-recording policy, finding it infringed on employees’ rights to document workplace issues related to working conditions or organizing activity.

Best Practices for Employers

To reduce risk and foster a respectful workplace, employers should take proactive steps:

1. Implement a Clear No-Recording Policy

Your policy should:

• Require prior approval for any workplace recording.
• Make exceptions for legally protected activity.
• Be consistent with federal and state law, especially NLRA guidelines.

2. Train Managers and HR Professionals

Supervisors should be reminded to assume that any conversation with an employee — especially those involving discipline or complaints — may be recorded. Train them to maintain their professionalism and avoid casual, ambiguous, or intemperate remarks.

3. Maintain Proper Documentation

Accurate and timely documentation of disciplinary actions, performance concerns, and internal complaints can provide essential context, if a secret employee recording ever surfaces in a legal setting.

4. Reinforce Confidentiality Policies

Ensure that employees understand that recording sensitive client information, proprietary business strategies, or legally protected data may violate not only company policy but also broader legal confidentiality obligations.

What Should You Do If an Employee Secretly Records You?

Employers and HR professionals often feel blindsided when they discover a recording has occurred. Your response matters.

If you discover an employee has been recording secretly without consent:

First, remain calm and avoid retaliatory actions. Take time to assess:

• Do not retaliate.
• Review the recording’s content and whether it violates any policies or agreements.
• Consider what was recorded and whether it contained confidential or inappropriate materials.
• Consult with legal counsel to determine appropriate next steps.

If you don’t already have a policy addressing recordings, this is the time to create one. And if legal concerns arise, e.g., if the recording is used to support a complaint or lawsuit, work closely with employment counsel to develop a response strategy.

Conclusion: Be Proactive, Not Reactive

Virginia’s one-party consent law means employee recordings are often legal but can still have serious consequences for your business. As an employer, the best defense often is a good offense: Implement clear policies, train your staff, and stay informed about how the law affects your workplace.

If you need help drafting or reviewing your workplace policies, navigating a specific employee situation, or responding to a legal issue involving secret workplace recordings, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.