Wisconsin recording consent law for interviews: one-party, plus a court-evidence catch

Wisconsin is a one-party consent state. Under Wis. Stat. § 968.31(2)(c), a private person may intercept a wire, electronic or oral communication "where the person is a party to the communication or where one of the parties to the communication has given prior consent," unless the purpose is a criminal or tortious act "or ... any other injurious act." An interviewer may record or transcribe their own interview. Wisconsin adds something few states have: a rules-of-evidence statute, § 885.365, that keeps recorded phone conversations out of civil cases unless certain conditions were met, one of which is telling the person at the time.

The consent checker compares Wisconsin's rule with the candidate's state.

The wiretap rule in section 968.31

Section 968.31(1) makes it a Class H felony to intentionally intercept "any wire, electronic or oral communication," to use a device to intercept an oral communication, and to disclose or use contents while "knowing or having reason to know" they were unlawfully intercepted. It also covers anyone who "intentionally alters" an intercepted communication on tape or another device.

The participant exception reads in full:

"For a person not acting under color of law to intercept a wire, electronic or oral communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act."

Two phrases are broader than the federal model: "of any state," which pulls in other states' torts, and "any other injurious act," which the statute does not define. A record kept to make a fair, job-related hiring decision is the ordinary case. Recording to embarrass a candidate or to capture something you could not lawfully ask about is where that language could start to matter.

The definitions in § 968.27 follow the federal pattern. "Intercept" is "the aural or other acquisition of the contents" of a communication through a device, so transcription is covered. "Oral communication" is the in-person category, defined by an expectation that the communication "is not subject to interception under circumstances justifying the expectation." Wire communications are aural transfers over wire or cable, and electronic communications cover the rest of what a video call sends.

Section 885.365: the evidence rule for phone recordings

Section 885.365(1) says evidence "obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other manner, shall be totally inadmissible in the courts of this state in civil actions, except as provided in ss. 968.28 to 968.37." Subsection (2)(a) lifts that bar where:

"Such recording is made in a manner other than by interception and the person whose conversation is being recorded is informed at that time that the conversation is being recorded and that any evidence thereby obtained may be used in a court of law"

The same paragraph also exempts recordings made through a telephone company's recorder connector that produces a tone about every 15 seconds. Subsection (2)(b) covers recordings by the telephone company itself.

This is not a consent requirement. It does not make a one-party recording unlawful. It is about what a party can later use in a civil case in a Wisconsin court, and the cross-reference to §§ 968.28 to 968.37 means the two statutes interact in ways this page does not try to resolve. For a hiring team, the point is narrower and practical: if you ever expect to rely on a recorded phone screen in a Wisconsin civil dispute, such as a discrimination claim about what was said, a recording made without telling the candidate may not be usable. Telling them at the time is what the exception rewards.

Penalties and civil damages

• Criminal. A Class H felony under § 939.50(3)(h) carries "a fine not to exceed $10,000 or imprisonment not to exceed 6 years, or both."
• Civil. Section 968.31(2m) gives anyone whose communication is "intercepted, disclosed or used in violation of ss. 968.28 to 968.37" a claim for actual damages, "but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher," plus punitive damages and "a reasonable attorney's fee and other litigation costs reasonably incurred."
• Federal. The parallel claim under 18 U.S.C. § 2520 has a statutory alternative of the greater of $100 a day or $10,000.

How the rules apply to each format

Illinois, Michigan and the rest of the Upper Midwest

Wisconsin's southern and eastern edges are where conflicts arise. Kenosha and Racine employers recruit heavily from northern Illinois, and Illinois makes surreptitious recording of a private conversation without everyone's consent a felony; see Illinois eavesdropping law for interviews. In the north, Marinette and Florence counties border Michigan's Upper Peninsula, and Michigan's "all parties" statute has an unresolved participant question, covered in Michigan eavesdropping law and job interviews.

To the west, Minnesota and Iowa are one-party states, so calls from Hudson into Minneapolis or from Prairie du Chien into Iowa rarely conflict; Minnesota's higher damages are explained in Minnesota recording consent law for interviews. For candidates farther away, the conflict-of-laws picture is in recording calls across state lines.

Reference calls and other conversations around the interview

Hiring involves more phone calls than the interview itself. Reference checks, offer conversations and calls with a candidate's current manager are all telephone conversations, so the same two Wisconsin statutes apply. A recruiter who is on a reference call is a party and may record it under § 968.31(2)(c), but a reference who was not told is in exactly the position § 885.365 describes, and the recording may be of little use if a dispute later reaches a Wisconsin civil court. References are also more likely than candidates to be in a different state from the one on the résumé. The same opening sentence works: say you would like to record, say why, and wait for the answer.

Practical steps for Wisconsin employers and recruiters

1. Say it on the record. A notice spoken at the start of the recorded phone call serves both the consent question in other states and the "informed at that time" exception in § 885.365.
2. Mind the purpose language. "Any other injurious act" is undefined; keep recordings tied to the hiring decision.
3. Do not edit recordings. Section 968.31(1)(f) covers intentionally altering an intercepted communication. Keep originals intact and make summaries separately.
4. Treat transcripts as recordings for consent, access and deletion.
5. Check AI rules separately in AI hiring laws by state, particularly for Illinois candidates.

A consent line for Wisconsin interviews

"I want to let you know up front that I'd like to [record /
transcribe] this call. It's for an accurate record of the interview
for the [role] position, kept by [who] for [period]. Like any business
record, it could be used if there were ever a legal dispute. Is that
all right with you? If not, I'll just take notes."

[Wait for a clear yes before starting. Otherwise, notes only.]

The middle sentence is there because of § 885.365's wording about evidence being used "in a court of law." Some employers will prefer a softer version; that is a judgment to make with counsel, not a requirement of the wiretap statute. Other versions are in the interview recording consent script.