You're facing bad behavior in the workplace, so you make a secret recording of the wrongdoer in action. Now you've got some great evidence, right? In fact, you may have made a bad mistake. Secret recordings often make it harder to win a courtroom victory. And that's not even the worst-case scenario.
This article by TELG managing principal R. Scott Oswald and TELG associate Austin Szabo was published by The Employment Law Group, P.C. on April 30, 2024.
By R. Scott Oswald and Austin Szabo
IMPORTANT: The following article is intended as a general summary of facts and law and not as individual legal advice upon which you should rely or act. Every case is unique and specific. This article represents our firm’s best knowledge as of April 2024.
Lately more of our law firm’s potential clients — employees who face on-the-job discrimination, harassment, or other wrongdoing — have arrived with secret workplace recordings that they believe could help to win their case.
The trend isn’t surprising: Recording events in the workplace has never been easier. Everyone now carries a phone that can record video or audio discreetly. Many meetings happen online, where simple tech tools can allow any participant to make a sneaky recording.
Plus, in an era of social media, there are fewer taboos against recording.
Very rarely, a secret workplace recording can be helpful. But mostly we get nervous when we hear that a potential client has been secretly recording events and conversations in the workplace.
Why? Because it can destroy an otherwise strong case.
Clandestine recordings may need to be fully disclosed in litigation, even if some parts are harmful to the person who recorded them — and they’re often excluded from trial evidence anyhow. Meanwhile, the mere existence of a covert recording may weaken a legal case, rather than helping it. It may end in termination and a complete loss of damages. It could even prove that the recorder broke the law.
For these reasons, employers lick their chops when they hear about secret recordings. In general, we advise potential clients to stop making workplace recordings immediately and — if we agree to proceed with their case — we start thinking about damage control.
Below are some factors that should dissuade you from making hidden recordings in your workplace. The short version: It’s too risky, and there are better ways to gather the evidence you need.
If you’ve already made a secret recording, however, don’t panic. We’ll outline the steps you should take.
Consideration #1
It depends partly on where you are when you make the recording, and also on where the other participants are, but secretly taping a workplace phone call or a Zoom meeting may be a crime.
Different states have different wiretapping laws. In permissive states, at least one participant in (let’s say) a phone call must consent to its taping. If your state follows this baseline rule, and if everyone is in the same state, your own consent is enough to record a call in which you’re participating.
But if you’re in an “all-party” consent state, everyone on the call must agree.
These days, with cell phones and work-from-home, it’s hard to know where everyone is. If two or more states are involved, it’s also hard to predict which state’s law will apply.
For instance, imagine that you’re working in Virginia, a one-party state, and you try to record a call with your boss — but she happens to be at her vacation home in Pennsylvania, an all-party state.
Or suppose your boss is driving when you reach her, and she crosses state lines during the discussion? Even experienced judges have trouble sorting out this stuff.
If it turns out that you’ve broken the law, the consequences can be severe:
In some limited circumstances you might be shielded by the National Labor Relations Act (NLRA), which might trump wiretapping laws if you made the recording in collaboration with a fellow worker as part of a “protected concerted activity.” That doesn’t apply in most of the examples we see, however.
Meanwhile, running afoul of wiretapping laws isn’t the only way a secret workplace recording might turn out to be illegal.
If you record trade secrets or classified information for non-allowed uses, for instance, you could be in violation of various laws. And if you signed a confidentiality agreement, your employer might argue that you have breached your contract.
Consideration #2
Just because a secret recording wasn’t illegal doesn’t make it usable evidence.
Proving that a recording is authentic and unaltered, for instance, can be difficult and expensive — especially now that artificial intelligence can create realistic audio and video, making claims of fakery more credible.
If your employer asserts that you’ve manipulated a recording, you might need to hire costly experts to convince a court to allow it into evidence.
What’s more, if you edited a recording and didn’t preserve the untouched original — or if you made multiple recordings but kept only the ones that supported your claims — you could be accused of spoliation, or destroying evidence. A judge could exclude any tainted recording, and might impose sanctions or even dismiss your case.
Recordings also may be booted from evidence because they include “hearsay,” a term for certain statements made outside of proper legal proceedings. The rules around hearsay are complicated, and admissibility will depend on what you’re trying to prove. But again, the legal back-and-forth will burn time and resources.
Our point here: It’s tough to get a court even to consider weighing whatever you’ve recorded.
Consideration #3
Let’s say you have a secret workplace recording that you made without breaking the law, and it seems viable as courtroom evidence.
You’re OK, right?
Not necessarily. If your recording violated your employer’s policies, as expressed in its employee handbook or elsewhere, you may still have ruined your case. Some companies have clear rules against making surreptitious recordings, while others may argue that you’ve broken a broader rule.
You won’t risk jail time by violating company policy — but you could face many of the other legal consequences that apply to criminal activity.
In particular, if your employer views secret recordings to be a fireable offense, it’ll likely argue that it owes you nothing (or close to nothing) even if it loses, because of the “after-acquired evidence” and “unclean hands” doctrines we mentioned above. Plus, as before, you could be fired if you’re still employed by that company.
As with wiretapping laws, it’s possible that an employer’s no-recording policy could be trumped by the NLRA, which protects certain types of organizing and self-protection by collaborating workers — though we don’t see too many cases like this.
Meanwhile, beyond purely legal arguments, a judge or jury might simply dislike you for breaking the rules, making it less likely that you’ll win your case at all. It’s true that fact-finders must balance all the relevant factors; your secret recording might end up looking trivial compared to, say, sexual harassment by your manager. It all depends.
Finally, even if you’re not penalized for having hit “RECORD,” a judge or jury may be unimpressed by content of the secret recording. What you view as a smoking gun mightn’t convince an outside observer who lacks the context and workplace history that you have.
Alternatively, an outside observer could conclude that your employer is indeed at fault — but also that your own behavior or strident tone, as revealed on tape, was a big part of the problem.
So a secret recording isn’t a good way to prove your case. Here are some better ways to gather the evidence you might need.
FIRST, call an employment lawyer. You’ll get most of the following tips, but you may also get extra advice that fits your unique situation.
SECOND, if you can, start taking detailed notes during or immediately after any meeting or event where you believe discrimination, harassment, or something else illegal is happening. Write down the actual words that were said. If possible, do this in plain sight: The mere presence of a notetaker may help to deter a wrongdoer. Be sure to record the names of anyone who witnessed the problematic behavior.
If it’s an official meeting, consider sending minutes or an after-meeting report to the participants. If that doesn’t seem wise, at least send an email to yourself so that your notes will get time-stamped by a computer. Keep a printout of everything you write, so that your employer can’t easily delete the records — and if it isn’t against company policy, send a copy to your personal email, too.
Keeping a day-by-day log is another good way to record events, and can be very useful later as a reference. For ongoing harassment in particular, a log will help to show a pattern. Keep your tone as neutral as possible: Just record the facts.
THIRD, if the behavior you’re suffering or witnessing is clearly against company rules, start protesting it in writing and, as a further step, look in your employee handbook for other ways to report it. It’s generally illegal to retaliate against employees for opposing or reporting wrongdoing, so you may gain powerful legal protections when you do this.
Some employees hesitate to complain because it might backfire. If you don’t report things like sexual harassment to higher-ups, however, your case may be harder to win. And if you are retaliated against, you’ll likely have an extra legal claim — one that’s often easier to win in court.
FOURTH, discuss your experience in real time with witnesses, co-workers you trust, and possibly friends or family members. It’s always useful to get another perspective, and it could mean that your allies will be available to testify later, if needed, about what you told them at the time.
And FIFTH, start printing out or otherwise saving documents that could be relevant to your claims, such as offensive emails. Take only documents that are already available to you as part your regular job — don’t break into anyone else’s email, for instance, or take anything that’s clearly confidential, like customer data. Don’t alter the documents in any way, but keep separate notes on what you believe each document might prove.
You might reasonably ask: Don’t some of these methods also produce hearsay, just like a secret recording would? Yes, but they’re more easily reconstructed for use in a court, especially if they also reside in your employer’s files. They’re less likely to be found illegal or inadmissible, or to trigger a dangerous argument about after-acquired evidence.
In other words, they provide a clearer pathway to winning your case.
For starters, do NOT delete or alter any recordings, no matter what. Even if you think you’ve violated the law, don’t destroy any evidence. It will come back to haunt you.
Talk to an employment attorney as soon as possible. A secret recording doesn’t automatically kill your case: The outcome depends heavily on the facts, your employer’s policies, and the actual content of the recording. It also depends on your goals, some of which could be reachable without the risks of litigation. Every situation is different.
One client came to us with secret recordings of the sickening racial and sexual epithets he endured regularly, along with physical abuse, from his supervisor and co-workers. The recordings weren’t illegal, but he had violated his employer’s policy by making them. We advised him to stop recording immediately.
In the end our client won sizable damages for his suffering from a hostile work environment and illegal retaliation. The judge relied on the recordings to discredit the sworn denials of our client’s supervisor, defeating the employer’s “he said/he said” arguments.
Our client was happy he won the hostile-environment claims in his case, as proved by the recordings — but he was still terminated from employment as a result of having secretly recording the conversations.
This wasn’t a typical case. Indeed, our firm almost never proceeds with litigation when a client has violated laws or policies against secret recordings. Only clear proof of predation, assault, or a crime like fraud — or a recording that is protected under the NLRA — might make us consider it.
When speaking to us, or to any employment lawyer, you should disclose every single workplace recording that you’ve made, and why. And you should stop making new ones. Once hired, your lawyer will likely ask you to hand over all the recordings for safekeeping.
Next, rack your brain for any signs that your employer knew, or could have known, that you were making any of these recordings.
Maybe you used your cell phone to tape a discussion with your boss, for instance, and placed the phone face-up on the desk between you? So maybe that wasn’t a secret recording after all?
Finally, and crucially, provide as much backup evidence as you can: Notes, logs, documents, names of witnesses, and so on.
In sum, get ready to make your case without relying on any secret recordings that you made. A good lawyer will provide realistic advice about the obstacles you face, and will suggest a path forward.
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R. Scott Oswald is managing principal of The Employment Law Group, P.C., a law firm that represents employees in disputes with their employers. Austin Szabo is an associate at the firm.
