Can I Secretly Record Sexual Harassment at Work in New Hampshire?
In New Hampshire, secretly recording an audio conversation is a crime. You cannot secretly record a boss or coworker making sexual advances, as it violates state wiretapping laws. Instead, save voicemails, preserve emails, and keep a written diary to document the abuse safely and legally.
When you are dealing with sexual harassment in the workplace, your first instinct might be to gather undeniable proof by hitting the record button on your smartphone. If you work in Manchester, Nashua, Concord, or anywhere else in the state, you must be fully aware of the local laws regarding recordings. Attempting to catch a harassing supervisor or coworker on tape without their knowledge can actually result in criminal charges against you, severely damaging your own case.
Understanding New Hampshire's Two-Party Consent Law
The state operates under a strict wiretapping and eavesdropping statute, specifically outlined in N.H. Rev. Stat. Ann. § 570-A:2. This law makes it illegal to willfully intercept any telecommunication or oral communication without the consent of all parties involved in the conversation. Unlike some states where only one person (you) needs to consent, this jurisdiction requires everyone being recorded to agree to it.
The Criminal Risks of Secret Audio Recordings
If you leave your phone on record in your pocket while your boss makes inappropriate sexual comments, you are actively violating the law. Under N.H. Rev. Stat. Ann. § 570-A:2, I-a, secretly recording a conversation when you are a party to it is classified as a misdemeanor. However, non-party recording or willfully disclosing the illegal audio escalates to a Class B felony under N.H. Rev. Stat. Ann. § 570-A:2, I. Furthermore, as addressed in State v. Clark, 177 N.H. 97 (NH Supreme Court 2024) and State v. Mueller, 166 N.H. 65 (NH Supreme Court 2014), while statutory suppression under N.H. Rev. Stat. Ann. § 570-A:6 applies to felony violations, covert recordings still carry serious criminal penalties and disciplinary consequences that can undermine your harassment claim.
Audio vs. Video Recordings: What is the Difference?
There is a distinct legal difference between capturing audio and capturing video. The state's strict two-party consent rule applies primarily to audio communications. Video surveillance without audio might not violate N.H. Rev. Stat. Ann. § 570-A:2, provided it is not recorded in a place where the person has a reasonable expectation of privacy, such as a restroom or a private changing area. However, relying on silent video to prove verbal sexual harassment is extremely difficult and often ineffective. It is generally highly discouraged to use covert video cameras in the workplace without legal guidance.
Legal Alternatives to Document Sexual Harassment
Since covertly recording conversations is legally dangerous, you must use alternative, completely legal methods to build your case. Gathering robust evidence is still possible without violating any statutes.
Keeping a Detailed Incident Diary
One of the most effective ways to document abuse is by maintaining a contemporaneous journal. Every time an inappropriate comment, unwanted touch, or proposition occurs, write down the exact date, time, location, and what was said. Note the names of any witnesses who were present. Because memory fades, a detailed, time-stamped log is considered powerful evidence by investigators and juries.
Saving Voicemails Legally
If your harasser leaves a voicemail on your phone, you are legally allowed to save and use it as evidence. When someone leaves a voicemail, they inherently know they are being recorded, which satisfies the consent requirement under the law. Do not delete these messages; back them up to a secure cloud server or external drive.
Preserving Emails and Text Messages
Digital text communications are excellent pieces of evidence. Take screenshots of text messages, Slack messages, or social media direct messages sent by the harasser. Print out emails and forward them to a personal email address (ensuring you do not violate company policies regarding confidential business information). Written communications are undeniable proof of harassment.
What to Do If You Already Illegally Recorded an Interaction?
If you have already recorded a conversation without consent, do not share the recording with coworkers, do not post it on social media, and do not present it to HR without speaking to an attorney first. Disclosing the contents of an illegally intercepted communication is a separate offense. You should immediately consult a local employment lawyer from our directory to determine how to proceed safely without exposing yourself to criminal liability.
Filing a Harassment Complaint
If you have gathered legal evidence, your next step is generally to report the conduct internally following your employer's handbook. If the company fails to act, you may need to file a formal administrative charge. In this state, complaints are typically filed with the New Hampshire Commission for Human Rights, Concord. You may need to fill out specific paperwork, such as a formal charge document outlining the discrimination. Additionally, you may cross-file with the federal government.
| Type of Evidence | Legal Status in NH | Value in a Harassment Case |
|---|---|---|
| Secret Audio Recording | Illegal (Misdemeanor for party / Felony for non-party or disclosure) | High legal risk, potential suppression |
| Voicemail Messages | Legal | High, explicit proof |
| Written Incident Diary | Legal | High, establishes a pattern |
| Emails / Text Messages | Legal | Very High, undeniable proof |
Frequently Asked Questions (FAQ)
Can I secretly record a meeting with HR about my harassment?
No. Even in a meeting with Human Resources, you cannot secretly record the audio. You must ask for permission to record, and if they say no, you must rely on taking written notes.
What is the penalty for unauthorized recording in this state?
Under N.H. Rev. Stat. Ann. § 570-A:2, I-a, intercepting a communication when you are a party to it without all parties' consent is a misdemeanor. If intercepted by a non-party or if an illegal recording is willfully disclosed, it is classified as a Class B felony under N.H. Rev. Stat. Ann. § 570-A:2, I.
Do I need to hire a lawyer to file a complaint?
While you are not legally required to have an attorney to file a charge with the Commission for Human Rights, having a local lawyer ensures your rights are protected, especially if you are navigating complex evidentiary rules.
Are there exceptions to the two-party consent rule for abuse?
Generally, no. The state strictly enforces the two-party consent rule. The courts have historically upheld this standard, meaning self-help covert recording is never recommended.
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