Illinois has been among the strictest of the “eavesdropping” states in prohibiting the secret recording of conversations without all parties’ consent. Many states have a “one-party consent” rule, under which it is permissible to record a conversation as long as at least one party (typically the recording party) consents. In Illinois, however, under Section 14-2 of the Illinois Criminal Code, individuals who knowingly use an eavesdropping device to record or intercept another’s conversation could be guilty of a felony. Because of this law, with its “two-party” consent rule, Illinois employers, for the most part, have been able to maintain their workplaces free from concern over the recording of management conversations.

Due to a recent decision by the Illinois Supreme Court, this no longer may be the case. In People v. Melongo, No. 114852 (March 20, 2014), the Illinois Supreme Court declared unconstitutional the Illinois eavesdropping statute requiring the consent of all parties to a recorded conversation. The case arose when a defendant in a criminal proceeding tape recorded a conversation regarding a court reporter’s allegedly false transcript of proceedings. The court reporter allegedly reflected in the transcript that Melongo was not in court for the proceeding, when Melongo claimed that she was in court. Melongo secretly recorded three conversations with an administrator for the court reporter’s office, and posted transcripts of the conversations on her website. She was charged with three counts of eavesdropping in violation of Section 14-2 of the Illinois Criminal Code. Melongo filed a motion to dismiss alleging, among other things, that the Illinois eavesdropping law is unconstitutional. The Supreme Court agreed, holding that the Illinois eavesdropping statute is overbroad and not narrowly tailored enough to meet constitutional standards.

The implications of this decision may be far-reaching for Illinois employers. Employees no longer have the threat of criminal prosecution to deter secretly recording meetings with management and human resources professionals. While the Illinois legislature may attempt to enact a new eavesdropping law, more narrowly tailored to meet constitutional standards, for now the existing law is not enforceable. In light of this decision, employers may want to consider implementing and disseminating employment policies setting forth expectations with respect to the use of recording devices in the workplace. Management and human resources training might also be considered as a reminder to use care when communicating with employees about work-related issues. For more information about this decision and its implications, please contact any member of Schiff Hardin’s Labor & Employment Group.

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