Earlier this week, the Star Tribune reported that Michael Brodkorb secretly recorded a phone call with the former President of the Minnesota Senate, Michelle Fischbach, regarding the termination of his employment.  Brodkorb is the former Communications Director for the Minnesota Senate Majority Caucus.  In December of 2011, Brodkorb was fired after an extramarital affair was revealed between Brodkorb and then-Senate Majority Leader Amy Koch.  After his termination, Brodkorb filed suit against the Minnesota Senate alleging gender discrimination and other claims.

It appears that Brodkorb intends to use his secret recording of Michelle Fischbach to support his case against the Senate.  In the recording, Fischbach reportedly said that the Senators who orchestrated the termination of Brodkorb’s employment “messed this up every possible way they can” and that she was “just flabbergasted that anybody can make decisions so poorly.”  She also reportedly said that “I think there has been an incredible double standard here.”

After the tape was released, Fischbach said that her comments were “made as a friend trying to be supportive of someone in a difficult situation, who was losing his job…”  Fischbach also clarified that she believes Brodkorb’s termination was legal.

Is Brodkorb’s secret recording of Fischbach legal under Minnesota law?  Yes.  Minnesota law is a “one-party consent” state, which means that only one party to a communication needs to consent for a recording of the communication to be legal – unless the recording is made for the purpose of committing a criminal or tortious act.  See Minn. Stat. § 626A.02, Subd. 2(d).  Because Brodkorb was a party to his conversation with Fischbach, this means that he was able to consent to the recording of the conversation, and no legal violation occurred when the recording was made.

Takeaways:  Because Minnesota is a one-party consent law, either employers or employees may secretly record conversations relating to employment without violating the law.  Because any conversation may be recorded, employers and managers should be careful about what they say to current or former employees – particularly when they are trying to be comforting to someone who was terminated.  On the other hand, Minnesota’s one-party consent law can work to the benefit of employers in some situations because it allows employers or managers to record communications with employees.  But employers should be careful before recording conversations with out-of-state employees.  Certain other states have “two-party consent” laws, which make it illegal for one party to record a communication without the consent of all parties involved.