Illinois Supreme Court Strikes Down Prohibition On Non-Consensual Audio Recordings, Raising New Issues For Employers

Illinois employers had been able to rely upon Illinois' prohibition against all non-consensual recording of conversations, whether private or not. As of March 20, 2014, that prohibition no longer exists.

In two companion cases that arose outside of the employment context, the Illinois Supreme Court invalidated Illinois' eavesdropping statute, 720 ILCS 5/14-2 (the "Statute"), reasoning that its broad prohibition against all non-consensual recording of conversations and publishing those recordings violated the First Amendment of the United States Constitution.

These decisions highlight the need for Illinois employers to revisit or implement thoughtful policies prohibiting workplace recording. Without a statute prohibiting this conduct, employers seeking to limit or prohibit audio recording will need policies that address this issue consistent with their culture and applicable law, including principles under the National Labor Relations Act (NLRA). In addition, multi-state employers should be prepared to see constitutional challenges to eavesdropping/wiretapping statutes in other states that, like Illinois, require that all parties to recorded conversations consent to the recording. However, given some of the unique elements of the Illinois law, these challenges will likely fail.

The Statute

The Statute provides, in relevant part:

(a) A person commits eavesdropping when he: (1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication. . .1

"Conversation" is defined as: "any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation."2 This emphasized language was at the center of the Illinois Supreme Court's reasoning because it extends the statute to the recording of any conversation, without regard to its intended privacy. Both the Illinois Supreme Court in its recent decision and the U.S. Court of Appeals for the Seventh Circuit in a case decided two years ago,3 relied on this language in finding constitutional infirmities in the Statute. The Illinois Supreme Court borrowed heavily from the Seventh Circuit's reasoning in Alvarez to invalidate the Statute.

The Clark and Melongo Decisions

In the first case, People v. Clark,4 the defendant used an "eavesdropping" device to record a court hearing regarding child support, and a conversation with opposing counsel in the court's hallway before the proceeding. The circuit court held that the Statute violated both...