OpenAI Arrest Highlights Workplace Recording Laws and Privacy Rules

An employee at OpenAI was recently arrested on suspicion of hiding a recording device in the company's executive boardroom to covertly record sensitive discussions about its technology. The incident raises a question relevant to any workplace: when is it legally permissible to record a conversation, and when does it cross the line into a criminal offense? Adv. Keren Klein, head of the labor law department at Pearl Cohen, explains the rules.

When Does Workplace Recording Become a Criminal Offense?

The OpenAI incident constitutes unlawful wiretapping, says Adv. Klein. According to the law, wiretapping is defined as listening to or recording a conversation using a device without the consent of any of the participants. Section 2 of the Wiretapping Law establishes that unauthorized wiretapping is a criminal offense.

The core rule is straightforward: when a person records a conversation they are personally participating in, it is not considered wiretapping under the law. This means an employee is legally permitted to record a conversation they are a party to, including discussions with a manager, coworker, or employer representative, even without the knowledge or consent of the other participants.

Conversely, an employee is strictly prohibited from recording a conversation they are not a part of. Such a recording may constitute illegal wiretapping and a criminal offense, even if the purported goal is to expose workplace misconduct, Klein emphasizes. Claiming whistleblowing or the exposure of irregularities does not automatically grant immunity to conduct unlawful wiretapping.

The claim that this involves exposing corruption or irregularities does not in itself grant permission to perform unlawful wiretapping, says Adv. Klein.

Does an Employee Who Records Their Manager Risk Termination?

From a criminal perspective, recording a conversation in which the employee actively participates is entirely permitted. However, in the realm of labor relations, the picture is considerably more complex.

Labor courts have repeatedly ruled that covert recording may, under specific circumstances, undermine the trust required between an employee and employer, Klein explains. On the other hand, case law has also recognized that employees frequently possess legitimate reasons to document conversations regarding their rights, and in many instances, such recordings have been admissible as evidence in labor courts.

Can an Employer Inspect an Employee's Phone or Computer?

Rules governing this area derive primarily from the Privacy Protection Law and rulings by the National Labor Court. The landmark precedent is the Isakov Inbar v. State of Israel ruling, which established that employees retain a constitutional right to privacy even in the workplace, and that employers lack unrestricted authority to inspect contents stored on work computers, email inboxes, or other digital media.

Even when dealing with company-owned equipment, simply having a corporate policy stating that inspections may occur is insufficient, Klein notes. She emphasizes that several key questions must be evaluated: