“They Can’t Do That, Can They?” Employees and covert recordings in the workplace

(Originally published Monday, December 16, 2013)

Recently, one of our clients called in a panic. Without revealing privileged or confidential information, here’s what the client told us: “One of our former employees secretly recorded a conversation with his supervisor, and now he’s using it as evidence to support his charge of discrimination at the Equal Employment Opportunity Commission! He can’t do that, can he??”

It’s a question lawyers are receiving from clients with increasing regularity as cellphones with recording capabilities, smartphones, and other easily concealed recording devices become more prevalent. One estimate is that anywhere between 33 and 50 percent of employees now covertly record conversations with their bosses. In 2011, an EEOC outreach manager estimated that as many as a third of the employees filing discrimination charges in his district office brought with them some form of digital evidence, whether audio or video recordings, as part of their initial evidence. Similarly, some lawyers representing employees say that at least half of their clients bring audio or video recordings to their initial consultation, and that they are more surprised when a potential client arrives at their office without such evidence.

Legality of covert recordings

In most cases employees may lawfully and secretly record conversations in the workplace, including conversations with supervisors and managers, and use those recordings as evidence of discrimination or retaliation in court or administrative proceedings, such as at the EEOC. In the majority of states—including Indiana, Kentucky and Ohio—it is lawful to record any conversation as long as one party to the conversation consents, even if the consent is provided by the person doing the recording. These states are known as “one-party consent” recording states. Federal law also authorizes such one-party consent recordings. In a handful of other states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington—such recordings may be made only if all parties to the conversation consent. Hence, these states are known as “two-party consent,” “dual consent,” or “all-party consent” states.

But even if the employee may lawfully record conversations with managers or supervisors, he or she can’t use those recordings in court, right? Wrong. Such recordings are usually admissible in court or at an administrative proceeding if the employee offering the recordings provides evidence sufficient to support a finding that the recording is authentic and of such clarity as to be intelligible and enlightening to a judge or jury. The employee offering the recording must also overcome a possible hearsay objection, but statements of supervisors and managers usually are not considered hearsay if made in the workplace regarding a matter relating to employment.

Protecting your business from covert recordings

So what’s an employer to do? Must you simply accept that your employees may be recording anything and everything that’s said or done in the workplace, and that such recordings may be used against you in a court of law? Not necessarily.

Various courts have made clear that employers may lawfully adopt and enforce policies prohibiting clandestine workplace recordings, provided the employer has a good reason for doing so—such as encouraging open and honest workplace communication and protecting trade secrets or other confidential and proprietary information—and provided the policy does not interfere with employees’ rights to engage in “protected concerted activity” under the National Labor Relations Act. (See this recent blog post for a discussion of one recent case upholding such a policy under the NLRA.) Such policies are usually lawful even if their prohibitions might result in employees being unable to record their complaints about allegedly discriminatory practices—what is commonly referred to as “protected activity”—under federal anti-discrimination laws. As the Seventh Circuit Court of Appeals (which covers Illinois, Indiana and Wisconsin) recently observed in a retaliation case brought under Title VII of the Civil Rights Act of 1964:

Although Title VII indubitably protects an employee who complains of discrimination, the statute does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination. As we have previously explained, inappropriate workplace activities are not legitimized by an earlier-filed complaint of discrimination.

A recent decision by the Sixth Circuit Court of Appeals (which covers Kentucky, Ohio, Michigan and Tennessee) reached a similar conclusion, holding that employers not only may implement policies that preclude employees from secretly recording conversations in the workplace, but employers may also discipline the employee for doing so, even where the employee claims that the secret recording was “protected activity” under Title VII.

How to implement a policy prohibiting workplace recordings

These rulings provide Indiana, Kentucky and Ohio employers with a tool for deterring secret recordings in the workplace. Employers who do not already have a written policy prohibiting such recordings should consider adopting one. The policy should be clearly communicated to employees and should specify examples of prohibited recording, including video recording and audio recording using devices such as smartphones. The policy should also specify the disciplinary action that could result from a violation, including possible termination from employment. A disclaimer stating that the policy is not intended and should not be interpreted to interfere with employee rights to engage in concerted activity under the NLRA also is advisable, as the National Labor Relations Board previously has indicated that a policy prohibiting employees from making covert recordings in the workplace might violate the NLRA if the policy did not include an express exception for recordings made in an effort to protect or advance employee rights under the NLRA.

If you discover that an employee is making secret recordings in your workplace, you should contact legal counsel as soon as possible. If you have questions about this topic or would like assistance drafting, adopting and implementing a policy prohibiting clandestine workplace recordings, please contact a member of Bingham Greenebaum Doll LLP’s Labor and Employment Practice Group.

DISCLOSURE REQUIRED BY CIRCULAR 230. This Disclosure may be required by Circular 230 issued by the Department of Treasury and the Internal Revenue Service. If this article, including any attachments, contains any federal tax advice, such advice is not intended or written by the practitioner to be used, and it may not be used by any taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer. Furthermore, any federal tax advice herein (including any attachment hereto) may not be used or referred to in promoting, marketing or recommending a transaction or arrangement to another party. Further information concerning this disclosure, and the reasons for such disclosure, may be obtained upon request from the author of this article.

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