Recording Employees and Employers: What's Legal and What's Not

An employee at OpenAI was recently arrested for allegedly hiding a recording device in the company's executive meeting room to secretly record sensitive discussions about its technology. This incident raises questions about the legality of workplace recordings. Attorney Kalia Klein explained that according to Israeli law, eavesdropping or recording a conversation using a device without the consent of any participant is illegal and constitutes a criminal offense. The central rule is that an individual can legally record a conversation in which they are a participant, even without the other parties' knowledge or consent. This applies to recordings made with managers, colleagues, or employer representatives.

However, recording a conversation in which one is not a participant is generally prohibited and can be considered illegal eavesdropping, even if the intention is to expose misconduct. Klein emphasized that claiming to expose corruption or irregularities does not, in itself, permit illegal eavesdropping. Exceptions to this rule typically involve investigative or security powers granted by law, often requiring a judicial order.

While recording a conversation one participates in is legally permissible, its impact on employment relations is more complex. Israeli labor courts have ruled that secret recordings can, under certain circumstances, damage the trust between an employee and employer. Conversely, the courts have also recognized that employees may have legitimate reasons to document conversations concerning their rights, and such recordings have been admitted as evidence. Therefore, there is no blanket rule justifying termination for any secret recording; each case depends on its specific circumstances, including the recording's purpose, scope, and the employee's good faith.

Regarding employers checking employee devices, the law, particularly the Privacy Protection Law and labor court rulings, establishes an employee's right to privacy. Employers do not have unlimited access to employee computers or emails. Even when using company-owned devices, a clear policy must exist, the employee must be aware of it, and the inspection must be proportionate, necessary, and ideally, with the employee's consent.

These rules also apply to employers. An employer can record a conversation they participate in without employee consent. However, recording a conversation they are not part of is generally illegal eavesdropping unless specifically authorized by law. Klein summarized that the main principle is that recording conversations you are part of is permitted, while recording conversations you are not part of is generally forbidden, with the impact on employment relations being a separate, context-dependent issue.