It depends on the state and the kind of case. For a secretly recorded call in a Virginia civil case, the answer is often no, because Va. Code § 8.01-420.2 keeps a recording of a telephone conversation out unless every person on the call knew it was being recorded, with one narrow exception. In Waldenmaier v. DBDriven.net, LLC, a published opinion filed November 4, 2026, the Virginia Court of Appeals held that a judge deciding summary judgment should not consider a recording that would be inadmissible at trial. The recording was of a Microsoft Teams call. The trial judge ruled that the statute covered it, and the employee did not challenge that on appeal. A footnote says the appeals court agrees. The opinion does not address recordings made in person or criminal cases, and this page does not say what any other state or a federal court does.
Who recorded what in this case?
Chanda Waldenmaier worked as a junior business systems analyst for DBDriven.net, an information technology company. She learned she was pregnant in November 2021 and asked in December to work from home because of complications, with a doctor's note. The company approved the request and each extension.
On February 18, 2022, the company's chief operating officer called her on Microsoft Teams. She made an audio recording of the conversation, to which she was a party, without his knowledge or permission. According to the opinion, he said her failure to "stay connected" to the office was "hurting" her position, and that "everybody who's got limitations hurt[s] the company." Her employment ended on May 1, when she was seven months pregnant. She sued, and the company asked the court to exclude the recording.
Why couldn't she use the recording?
Section 8.01-420.2 says no recording of a telephone conversation may be admitted in a civil proceeding unless one of two things is true. Either (i) all parties were aware it was being recorded, or (ii) the part offered contains admissions that, if true, would be criminal conduct that is the basis of the civil action. Clause (ii) also requires that one party knew of the recording and that the case is not a divorce, separate maintenance, or annulment. Awareness under (i) is shown by a declaration at the start of the recorded portion that the conversation is being recorded. Emergency reporting systems and certain phone-carrier monitoring are excluded. Her boss did not know about the recording, and the opinion does not discuss either exception.
At the trial level she argued that a Teams call is not a telephone conversation. The judge disagreed, noting that the exchange began with "I'm calling you." She did not repeat that argument on appeal, so no one asked the Court of Appeals to decide it. A footnote gives the court's view anyway. Citing an unpublished opinion about a FaceTime call, it says it agrees with that opinion's reading of "telephone" and that a video call made through a phone or computer qualifies as a "telephone conversation." That tells you how this panel reads the statute, but nobody was disputing the point, and the footnote does not name Teams.
Her appeal argued that even if the recording was barred at trial, the judge should have looked at it when deciding whether to end the case early on summary judgment. The court said no, and that is its actual holding on the recording. Inadmissible evidence cannot create a real dispute for a jury to resolve, so a judge deciding summary judgment should not consider it.
Can a recording be legal and still be unusable?
Yes, because those are separate questions. Virginia's wiretap statute, Va. Code § 19.2-62(B)(2), says it is not "a criminal offense under this chapter" to intercept a communication when you are a party to it or one party gave prior consent. The federal wiretap law, 18 U.S.C. § 2511(2)(d), says it is not unlawful for a person not acting under color of law to intercept a communication on the same basis, unless the recording is made to commit a criminal or tortious act. The opinion does not say Waldenmaier broke any law by recording.
The text of the Virginia evidence statute does not ask whether the recording itself was lawful. State recording laws differ, so check where you and the other person are located. Our guide to one-party and two-party consent states is a place to start, and our guide to recording Zoom, Teams, or Google Meet calls covers the video-call side.
What did the court decide about pregnancy accommodation?
Va. Code § 2.2-3909(B)(2) bars an employer from taking adverse action against an employee who requests or uses a reasonable accommodation for pregnancy, childbirth, or related medical conditions. That provision is silent on causation.
The trial judge required "but-for" causation: the employee had to show she would not have been fired without the accommodation. The company said the real reason was the sudden loss of a Marine Corps contract that supplied over a third of its income, and that she was the most junior analyst. The Court of Appeals rejected the but-for test. It held that the "motivating factor" standard in Va. Code § 2.2-3905(B)(6), the default across the Virginia Human Rights Act unless the chapter provides otherwise, governs claims under (B)(2). Under that standard, using pregnancy or a related condition as a motivating factor for an employment practice is unlawful "even though other factors also motivate the practice." Because an accommodation exists only because of the underlying condition, the court treated punishing the accommodation as discrimination against the pregnant employee. So a worker does not have to prove she would have kept the job without the accommodation, but she does have to show it was a motivating factor.
What is still undecided?
The judgment was affirmed in part, reversed in part, and remanded. Waldenmaier won on causation and lost on the recording, and she has not won the case. On remand the judge must decide again whether the company is entitled to judgment, this time under the motivating-factor test and considering only admissible evidence. The opinion does not decide why she was fired. It did not reach her backup argument under the but-for test, and it left open the causation standard for subsection (B)(3).
Can someone still testify about what was said? The ruling leaves room for it. The court read the written order as limited to the recording itself and said otherwise-admissible evidence about the call need not be excluded. It did not decide what testimony must come in, and it did not approve using the recording to impeach a witness. The opinion also describes the trial court as excluding the transcript of the call, so do not assume a transcript gets around the ruling.
What can you do in Virginia besides secretly recording a call?
The court did not rule on these practical steps, and a judge decides what comes into evidence.
Write notes right after any conversation that matters: the date, who was present, what was said, and what was asked of you.
Follow up with an email that restates what was said. The reply, or the lack of one, becomes part of your paper trail.
Keep what the employer already put in writing, such as accommodation approvals, performance reviews, and messages from supervisors.
Note who else heard or saw the conversation, since they may be able to describe it from their own memory.
If you want to record, tell everyone and state at the beginning of the recording that the conversation is being recorded. Under the Virginia statute, that declaration is how awareness is shown.
Check your employer's handbook for a recording policy, which this opinion does not address. If your dispute involves videos or posts, see our guide on firing an employee over social media or recording.
If you believe a Virginia employer took adverse action against you for requesting or using a pregnancy accommodation, Va. Code § 2.2-3909(E) requires suit within two years of the unlawful denial of rights. If you filed a complaint with the Office of Civil Rights or a local human rights agency within those two years, the deadline becomes 90 days after that agency's final disposition. That section covers employers with five or more employees, and other Virginia Human Rights Act claims, under § 2.2-3908, have different notice and filing rules.
Your state and city matter. Federal law is the floor. Many states and cities require higher pay, more leave, and broader protections. Always check your state’s rules (and any local ordinances) in addition to the federal laws above. This is general legal information, not legal advice.
Frequently asked questions
Can I use a secret recording of my boss in a civil case?
It depends on the state. In Virginia, Va. Code § 8.01-420.2 keeps a recording of a telephone conversation out of a civil case unless all parties knew it was being recorded, or a narrow criminal-admissions exception applies. Under Waldenmaier v. DBDriven.net, a recording that could not come in at trial also stays out of the summary judgment decision. The case says nothing about other states.
Does a Microsoft Teams call count as a telephone conversation in Virginia?
The trial judge in this case ruled that it did. That ruling was not challenged on appeal, so the Court of Appeals did not have to decide the question. In a footnote, the court said it agrees with an earlier unpublished FaceTime opinion and treats video calls placed through a phone or computer as telephone conversations under § 8.01-420.2.
Is it illegal to record my boss if I am part of the call?
The opinion did not decide that. Va. Code § 19.2-62(B)(2) says it is not a criminal offense under that chapter to intercept a communication you are a party to. Federal law, 18 U.S.C. § 2511(2)(d), says a private person who is a party to a communication does not act unlawfully under that chapter by intercepting it, unless the purpose is a criminal or tortious act. Other states differ, and the evidence rule is a separate question from whether the recording was lawful.
Can I still testify about what was said on the call?
This ruling does not stop you. The order reached only the recording, and the court said other evidence about the call can be considered if it is otherwise admissible. It did not decide what specific testimony must be allowed.
Does the motivating-factor standard help on pregnancy accommodation claims in Virginia?
For these claims, the court held the employee must show that requesting or using the accommodation was a motivating factor in the adverse action, even if other factors also played a part. She does not have to meet but-for causation. The case was sent back to the trial court, so the outcome for this employee is undecided.
What can I use instead of a recording?
Dated notes written soon after a conversation, follow-up emails that restate what was said, the employer's own documents, and coworkers who heard the call may all help, though a judge decides what comes into evidence. The opinion does not rule on any of these.
This article is general legal information, not legal advice, and may not reflect the most current law or the law in your jurisdiction. Laws vary by state and change over time. For advice about your specific situation, consult a licensed attorney.
Knowing your rights is the first step
Join thousands committing to calmly and consistently exercise their constitutional rights.
