August 2018 - Employees Secretly Record Managers for Litigation

As smartphones have become common, employees are recording work conversations without employers' knowledge or permission in preparation for discrimination, sexual harassment and whistle-blower lawsuits. These recorded conversations have included talks with co-workers, meetings with supervisors, and even discussions with HR and executives. State and federal laws limit employers' ability to prohibit recordings, but the Trump administration has loosened federal restrictions.

 "A recording of sexual harassment or a discriminatory comment can be very powerful evidence and damaging to the employer," said Jay Holland, an attorney with Joseph Greenwald & Laake in Greenbelt, Md.

Marc Katz, an attorney with DLA Piper in Dallas, said plaintiffs' lawyers now arm employees with the buzzwords needed to spark discrimination cases and send workers into businesses to record conversations that support their upcoming lawsuits. "I've been practicing for 24 years and did not see recording like this years ago. Now it's relatively commonplace," he said.

In one recent whistle-blower lawsuit, an employee surreptitiously used a pen with a tiny digital voice recorder for more than a year. Another whistle-blower in the same lawsuit compiled recordings for eight months.

Secret recordings are "definitely on the increase," not only in whistle-blower cases but also under Title VII of the Civil Rights Act of 1964 and in retaliation cases, said Edward Ellis, an attorney with Littler in Philadelphia. Such recordings frequently arise in sexual-harassment cases, where an employee will try to use a recorded statement as a smoking gun, he noted.

One-Party vs. All-Party Consent

Most states permit one-party rather than all-party consent for recordings. Some debate which states are one-party and which are all-party consent (see this chart vs. this one, for example).

One-party states require only the consent of one participant to the communication. So if the person recording is consenting and a part of the communication, that is enough. "This can lead to supervisors, managers and executives being secretly recorded without their knowledge," said Rachel Conn, an attorney with Nixon Peabody in San Francisco. "Clearly employers in all-party states have greater rights to prohibit recordings because supervisors, managers and executives cannot be [lawfully] secretly recorded" there.

Map

Companies ought to prohibit taping no matter what state they're in, Ellis said, though such a policy will be more difficult to enforce in a state that permits one-party consent.

Employers should prohibit recording, not only to strengthen its defenses in litigation, he said, but also because recording can inhibit people from speaking freely about work and strain relationships among co-workers.

Any rule prohibiting the use of recording devices by employees should clarify that recording, whether audio or video, is permitted to address specific grievances or other areas of concern, such as safety issues, and is not intended to chill employees' exercise of their rights under the National Labor Relations Act, said Lisa Cassilly, an attorney with Alston & Bird in Atlanta and New York City.

It is important to note that legal cases involving secret recordings in the workplace are "not a fully developed area of the law" and are predicted to gain attention as secret recordings increase. 

Source: SHRM, Allen Smith J.D., August 8, 2018

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