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 Clark's right to substantive due process and his First Amendment rights. Before the Illinois Supreme Court, Clark argued that section (a)(1)(A) was overbroad because it captured conduct beyond the legitimate government interest in protecting conversational privacy.
In evaluating Clark's argument, the Illinois Supreme Court first concluded that the Statute was too broad as it, with limited exception, criminalizes the recording of all conversations. Recognizing that the right to make an audio recording is encompassed within the protections of the First Amendment and the Statute is "content-neutral," the Illinois Supreme Court applied intermediate scrutiny. Accordingly, it evaluated whether the Statute advances important government interests unrelated to suppression of free speech and does not burden substantially more speech than necessary to further those interests.
The court concluded that the Statute failed this test because it burdens substantially more speech than necessary to serve the legitimate interests of the Statute. In reaching this conclusion, the court considered that the objective of the Statute is to protect conversational...
