Michigan eavesdropping law and job interviews: why the participant question is still open

Michigan's eavesdropping statute, MCL 750.539c, makes it a felony to use a device to eavesdrop on a private conversation "without the consent of all parties thereto." Whether that applies to a person recording a conversation they are part of is genuinely unsettled: a 1982 Court of Appeals decision says no, a federal trial court said yes in 2019, and a federal appeals court sided with the 1982 decision in 2022. Michigan's Supreme Court has not resolved it. For a recruiter or hiring manager, the safe reading is all-party: tell the candidate you are recording or transcribing and get a yes.

For a specific call between two states, the consent checker shows which rule applies.

Below: the statutory text, the three decisions that make up the dispute, how the law treats phone, video and in-person interviews, the penalties and civil remedies, cross-state calls, and a consent line to read.

What the statute says

Three sections of the Michigan Penal Code do the work:

• The offense, MCL 750.539c. "Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto" commits a felony.
• The definition, MCL 750.539a. To eavesdrop is "to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse." The same section defines a private place as one where a person "may reasonably expect to be safe from casual or hostile intrusion or surveillance."
• Devices in private places, MCL 750.539d. A person may not "install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place."

The tension is visible in the text. Section 539c says "who is present," which sounds like it covers participants. The definition says "private discourse of others," which sounds like it covers only outsiders.

The participant question, decision by decision

Sullivan v. Gray (Mich. Ct. App. 1982): participants may record

In Sullivan v. Gray, 117 Mich. App. 476, a divided Court of Appeals held that the statute, by limiting eavesdropping to "the private discourse of others," excludes a participant recording their own conversation. Judge Brennan dissented, pointing to the "present or not present" wording in § 539c.

AFT Michigan v. Project Veritas (E.D. Mich. 2019): a federal court disagreed

Ruling on a motion to dismiss in March 2019 (Case No. 4:17-cv-13292), a federal district judge concluded that "Sullivan's construction contravenes the Legislature's intent" and predicted that the Michigan Supreme Court would adopt the dissent's reading: a participant may not record a private conversation without all parties' consent. A federal trial court's prediction does not bind Michigan's state courts, but it shows the participant exception is open to attack.

Fisher v. Perron (6th Cir. 2022): back to Sullivan

In Fisher v. Perron, 30 F.4th 289, a case about recorded phone calls between family members, the Sixth Circuit applied Sullivan and treated Michigan's statute as allowing a participant to record. Federal courts in Michigan follow the Sixth Circuit, so for now the federal appellate view favors the participant exception.

The result is a rule that depends on which court you end up in. A hiring process should not depend on that. Asking for consent makes the question irrelevant.

How the law applies to interview formats

The private-place rule in § 539d deserves attention for on-site interviews. An interview room with the door closed may well be a place where the candidate reasonably expects not to be under surveillance, and a recording device placed there without consent can be a separate felony, with no participant exception in its text.

Penalties and civil remedies

• Eavesdropping, § 539c: a felony punishable by imprisonment for not more than 2 years, a fine of not more than $2,000, or both.
• Devices in private places, § 539d: a felony punishable by up to 2 years or $2,000 for a first violation of subsection (1)(a), more for repeat violations; distributing a recording obtained in violation is punishable by up to 5 years.
• Civil remedies, MCL 750.539h: any party to a conversation subject to eavesdropping may seek an injunction, "all actual damages against the person who eavesdrops," and punitive damages.

Unlike several all-party states, Michigan's civil section does not set a minimum dollar amount, but punitive damages are available, and a lawsuit about how candidates were recorded is a cost on its own.

What it means for recording or transcribing a Michigan interview

1. Do not build a process on Sullivan. It may well protect a participant, but one federal court has already rejected it, and the question is open in Michigan's Supreme Court. Ten seconds of consent avoids the argument.
2. Transcription is recording. The definition covers anyone who "overhear[s], record[s], amplif[ies] or transmit[s]" the discourse. A tool that sends audio to a transcription service transmits it.
3. Panels need everyone. If the statute is read as all-party, each interviewer's consent counts as much as the candidate's.
4. Candidates who record. The same uncertainty applies to a candidate recording you. Decide your policy in advance and apply it consistently.

Calls between Michigan and other states

If the interviewer is in a one-party state and the candidate is in Michigan, the candidate's side of the call is in a state whose statute says all parties. If the interviewer is in Michigan and the candidate is in California, Florida or Pennsylvania, the other side is in a state with a clear all-party rule, and California's Supreme Court has applied its own law to calls recorded elsewhere (Kearney v. Salomon Smith Barney, 2006). In either direction, the strict rule is the one to plan for. The general analysis is in recording calls across state lines, and the federal one-party baseline is explained in one-party consent states.

A consent line for Michigan interviews

"Quick note before we begin: I'd like to [record / transcribe] our
conversation so my notes for the [role] position are accurate. Only
[who] will see it, and it's deleted after [period]. You're welcome to
say no, and I'll take notes by hand instead with no effect on your
application. Are you OK with me [recording / transcribing]?"

[Wait for a clear yes before capture starts.]

For panel wording, email notices and a consent log, see the interview recording consent script.

If the candidate says no

Stop or never start capture, say out loud that it is off, and take notes by hand. Do not treat the refusal as a signal about the candidate; a refusal can be about privacy, a past experience or simply preference. Log that you asked and the answer, in neutral words, so the record shows a consistent process.

Checklist for Michigan interviews

1. Treat Michigan as all-party for every format.
2. Ask the candidate, and agree internally, before capture starts.
3. Never record or transcribe an interview you are not part of.
4. For on-site interviews, do not leave a device running in an interview room without telling the people in it.
5. Keep the consent question and answer at the start of the recording or in your notes.
6. Review the policy if Michigan's Supreme Court or Legislature settles the participant question.

Michigan sits in the "disputed" row of the two-party consent states table, alongside Delaware.