KGB telephone tapping room in Vilnius, Lithuania
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Does your H-1B employer make illegal demands (e.g. demand that you pay them $3,000, or else they’ll fire you and cancel your visa), and make such illegal demands over the phone or in person, as opposed to in email/writing?

When H-1B employers make fraudulent requests, they often make the requests over the phone or in person, so there is no written proof of the illegal requests.

If you are confronted with this situation, where your H-1B employer is making many illegal requests that are not put in writing, you may be tempted to make a tape or digital recording of the employer’s illegal requests.

Before making a recording, however, you should consider the various issues raised in this post.  (Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney and discuss your specific circumstances).

Please consider these things before you make a recording:

  • There are several federal and state laws in the U.S. that apply to recordings and restrict your ability to record a conversation.
  • You may not know about the laws that apply to your situation, or you may have incorrect assumptions about the laws (for example, you may assume the laws only apply to “wiretapping” of phone lines without the callers’ knowledge, but in fact the laws are much broader and apply to in-person recordings, recordings where one or more parties has consented to the recording, etc.).
  • The laws’ requirements are different, depending on what state you are in.
  • The laws’ requirements are different, depending on whether a party has consented to the recording (e.g. under federal law it is permissible to record a phone call if only one of two parties on the line have consented; whereas under several states’ laws, all parties on the conversation must consent for it to be lawfully recorded).
  • The laws’ requirements are different, depending on what type of communication is being recorded (e.g. laws differ for recording an in-person discussion as compared to recording a phone conversation).
  • Some laws apply to the making of the recording, whereas other laws concern whether or how the recording can be used, e.g. whether it can be used as evidence in a legal proceeding.

This website, “Can We Tape?” by the Reporters Committee for Freedom of the Press, has detailed information summarizing federal and state laws concerning recordings, including State-by-State summaries, so you can look up information about laws that apply in your particular State.

Please note: This website (as well as this post) provide general information, but NOT legal advice.  Laws often change, and do so more rapidly than websites are updated.  Also, websites do not, of course, evaluate your specific circumstances. An attorney can evaluate your specific circumstances only after an in-depth consultation. With that said, the the Reporters Committee for Freedom of the Press website is a good place to familiarize yourself with overviews of the law concerning recordings, and issues you should be aware of.

The following helpful summary is stated on the website’s introduction page:

…[Federal and state] statutes address wiretapping and eavesdropping – listening in on conversations of others without their knowledge – they [also] usually apply to electronic recording of any conversations, including phone calls and in-person interviews.

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. A majority of the states and territories have adopted wiretapping statutes based on the federal law, although most also have extended the law to cover in-person conversations. Thirty-eight states and the District of Columbia permit individuals to record conversations to which they are a party without informing the other parties that they are doing so. These laws are referred to as “one-party consent” statutes, and as long as you are a party to the conversation, it is legal for you to record it. (Nevada also has a one-party consent statute, but the state Supreme Court has interpreted it as an all-party rule.)

Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Be aware that you will sometimes hear these referred to inaccurately as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping.

Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have consent to tape, and could not naturally overhear.

Federal law and most state laws also make it illegal to disclose the contents of an illegally intercepted call or communication.

To sum it up, recording a communication with your H-1B employer could be a good idea, or a bad idea, depending on circumstances like those identified above.  If you learn more about the issues above and/or consult with an attorney before recording any communications, you are more likely to make better decisions with regard to your legal rights and to any potential legal claims that could be pursued in the future.

Additional Information

To learn more about H-1B rights and options, please see these posts:

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This blog is authored by Employee and H-1B Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveerof the law firm V.K. Vandaveer, P.L.L.C.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies among situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

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