South Dakota Workplace Recording Laws

South Dakota's one-party consent law gives employees the legal right to record workplace conversations they participate in. Under SDCL 23A-35A-20, you can record meetings with your boss, conversations with HR, interactions with coworkers, and any other workplace discussion you are part of, all without telling anyone you are recording.

At the same time, employers have their own rights to use video surveillance in common areas, and they can adopt internal policies restricting employee recording. This guide explains how South Dakota's recording laws apply in the workplace, what both employees and employers can and cannot do, and how the federal National Labor Relations Act interacts with state law.

Employee Recording Rights in South Dakota

Your Right to Record Workplace Conversations

As a one-party consent state, South Dakota allows you to record any conversation you are part of without notifying or getting permission from the other participants. In the workplace, this means you can legally record:

• Meetings with your supervisor about performance, assignments, or expectations
• HR conversations including disciplinary meetings, grievance discussions, and exit interviews
• Conversations with coworkers about workplace conditions, safety concerns, or disputes
• Phone calls with clients, vendors, or other business contacts that you participate in
• Performance reviews and feedback sessions
• Training sessions that you attend

You can use a smartphone, a dedicated voice recorder, or any other recording device. The statute does not restrict the type of device used.

What You Cannot Record at Work

One-party consent has limits. You cannot:

• Record conversations you are not part of. Planting a recorder in a conference room and leaving to capture a meeting you are not attending is illegal wiretapping under SDCL 23A-35A-20.
• Install hidden cameras in private areas. SDCL 22-21-1 prohibits placing surveillance devices in bathrooms, locker rooms, and other private spaces.
• Intercept electronic communications between others. Reading a coworker's emails or intercepting their phone calls without consent violates both state and federal wiretapping laws.

Documenting Workplace Issues

Recording can be a valuable tool for documenting workplace problems. Common reasons employees record at work include:

• Harassment. Recording verbal harassment from a supervisor or coworker creates contemporaneous evidence that is difficult to dispute.
• Discrimination. Capturing discriminatory statements during meetings or conversations provides direct proof of discriminatory intent.
• Retaliation. Recording interactions after filing a complaint can help demonstrate a pattern of retaliatory conduct.
• Unsafe working conditions. Documenting safety violations through audio or video can support complaints to OSHA or state regulators.
• Wage disputes. Recording conversations about pay, hours, or benefits can preserve evidence of verbal agreements.

Employer Surveillance in South Dakota

Video Surveillance in the Workplace

South Dakota does not have a specific statute governing employer video surveillance. However, SDCL 22-21-1 applies to all surveillance devices in private places, including those installed by employers. The general rules are:

Cameras are permitted in:

• Sales floors and retail areas
• Warehouses and loading docks
• Parking lots and garages
• Lobbies and reception areas
• Shared office spaces
• Hallways and stairwells
• Cash register areas

Cameras are prohibited in:

• Bathrooms and restrooms
• Locker rooms and changing areas
• Private break rooms
• Nursing and lactation rooms
• Any area where employees have a reasonable expectation of complete privacy

An employer who installs a camera in a prohibited area faces Class 1 misdemeanor charges under SDCL 22-21-1, carrying up to 1 year in jail and a $2,000 fine.

Audio Surveillance by Employers

Audio recording by employers carries additional legal risk. If the employer (or its representative) is not a party to the conversation being recorded, capturing audio could violate SDCL 23A-35A-20, a Class 5 felony. Employers who install audio recording devices in common areas must ensure that at least one party to any recorded conversation has consented.

Many employers avoid audio recording entirely because of the heightened legal exposure compared to video-only surveillance.

Employer Notice Requirements

South Dakota does not have a statute requiring employers to notify employees about workplace surveillance. However, providing notice is considered a best practice for several reasons:

• It reduces the risk of invasion of privacy claims
• It helps establish that employees have no expectation of privacy in monitored areas
• It promotes transparency and trust in the workplace
• Some federal contracts and industry regulations may require disclosure

Employer No-Recording Policies

Can Your Employer Prohibit Recording?

Yes, but with limitations. South Dakota employers can adopt internal policies that prohibit or restrict employee recording in the workplace. These policies are enforceable as a matter of company discipline. If you violate a no-recording policy, your employer can:

• Issue a verbal or written warning
• Impose disciplinary action
• Suspend you
• Terminate your employment

However, violating a company no-recording policy is not a crime under South Dakota law. The recording itself remains legal under SDCL 23A-35A-20 as long as you are a party to the conversation.

NLRA Protections for Employee Recording

The National Labor Relations Act (NLRA) provides important protections that can override employer no-recording policies in certain circumstances. Under the NLRA, employees have the right to engage in "protected concerted activity," which includes discussing wages, working conditions, and safety concerns with coworkers.

The National Labor Relations Board (NLRB) has found that blanket no-recording policies can violate Section 7 of the NLRA because they chill employees' exercise of protected rights. In Boeing Co., the NLRB established a balancing test that weighs the employer's legitimate business justifications against the policy's impact on employee rights.

Recording may be protected under the NLRA when:

• You are documenting unsafe working conditions to share with coworkers or regulators
• You are gathering evidence of wage theft or labor law violations
• You are recording discussions about unionization or collective bargaining
• You are preserving evidence of unfair labor practices

Employers cannot discipline employees for recording activity that falls under NLRA protection, regardless of internal policies.

Whistleblower Protections

South Dakota's whistleblower protections and federal whistleblower statutes may also protect employees who record evidence of illegal activity. Employees who record conversations documenting fraud, safety violations, or other unlawful conduct may be shielded from retaliation under applicable whistleblower laws.

Specific Workplace Recording Scenarios

Can I Record a Meeting With HR?

Yes. Under South Dakota's one-party consent law, you can record any meeting you attend, including HR meetings. This is particularly common during:

• Disciplinary proceedings
• Termination meetings
• Grievance hearings
• Accommodation request discussions
• Return-to-work meetings after leave

HR may have a policy against recording, but the recording itself is legal. Consider whether the value of having a recording outweighs the risk of disciplinary action for violating company policy.

Can I Record a Coworker Who Is Harassing Me?

Yes. If you are the target of verbal harassment and you are present during the harassing conduct, you can record it. This type of evidence can be powerful in:

• Internal complaints to HR or management
• EEOC discrimination and harassment complaints
• State human rights commission proceedings
• Civil lawsuits for hostile work environment

Can My Employer Record Me Without Telling Me?

An employer can conduct video-only surveillance in common areas without specifically notifying individual employees, though posting signage is recommended. For audio recording, the employer or its representative must be a party to the conversation to satisfy one-party consent. An employer cannot install a hidden audio recorder to capture employee conversations that no management representative participates in.

Can I Record a Phone Call With a Client?

Yes, as long as you are a participant in the call. Be aware that if the client is in a two-party consent state, the stricter law may apply. Many businesses address this by including recording notices in their standard call scripts.

Using Workplace Recordings as Evidence

Employment Disputes

Recordings made lawfully under South Dakota's one-party consent law are generally admissible in:

• Employment discrimination cases
• Sexual harassment claims
• Wrongful termination lawsuits
• Wage and hour disputes
• Workers' compensation hearings
• Unemployment benefit appeals

Courts will evaluate the recording's authenticity, relevance, and whether its probative value outweighs any prejudicial effect.

Administrative Proceedings

Recordings can also be submitted as evidence in:

• EEOC complaints and investigations
• OSHA complaints about workplace safety
• South Dakota Department of Labor proceedings
• Unemployment insurance hearings

Best Practices for Workplace Recordings

1. Keep the original file unedited. Never alter, splice, or selectively edit a workplace recording.
2. Note the date, time, location, and participants as soon as possible after recording.
3. Store recordings securely on a personal device or personal cloud storage, not on employer-owned equipment.
4. Do not share recordings publicly before consulting with an attorney.
5. Back up recordings immediately to prevent accidental loss.

Remote Work and Recording

With more South Dakota employees working remotely, recording rules for virtual meetings have become increasingly relevant. The same one-party consent rules apply:

• You can record Zoom, Teams, or Google Meet calls you participate in
• If other participants are in two-party consent states, the stricter law applies
• Employer policies about recording virtual meetings should be reviewed
• Platform-generated recordings (like Zoom's built-in recording feature) typically notify all participants, which avoids consent issues

More South Dakota Recording Laws

Audio Recording | Video Recording | Voyeurism & Hidden Cameras | Workplace Recording | Recording Police | Phone Call Recording | Security Cameras | Recording in Public | Landlord-Tenant | Dashcam Laws | Schools | Medical Recording

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