Recordings at Workplace

Posted on September 10, 2019 in Consulting

I often get calls from clients concerned about employees secretly recording conversations. In fact, I recently wrapped up a case that involved nearly six hours of surreptitious audio recordings. This was far from the first time I have had a plaintiff secretly audio or video workplace communications. It reminds me of some lessons to share on this topic.

1. A primer on the law

Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. 18 U.S.C. 2511(2)(d). Most states, including Texas, adopt the same rule. However, some states require all parties to the conversation to give consent to the recording. These are the “two-party” jurisdictions. Approximately twelve states fit this group. Big surprise, California is a two-party consent state. However, and this point cannot be understated, it is illegal for someone to record communications between other parties when the person making the recording is not a participant in the conversation.

2. Technology makes recordings more likely

The convenience of modern technology makes it all too easy to record conversations. Gone are the days of flip phones and the microcassette device. With smart phones glued to our hands any conversation can be recorded without detection. Smaller more sneaky devices can be purchased too. See https://spycentre.com/collections/spy-voice-recorders.

3. Act impeccably and you have no fears

Supervisors should have nothing to fear if they communicate effectively and professionally in the workplace. Perhaps the simple lesson is to train managers to think that they are being recorded. I experienced some of this in the practice of law. When I was young, long ago, I struggled to watch video depositions where I was the questioning lawyer. I quickly changed my perspective. Being recorded makes me very aware of my role and might actually help me perform at a higher level.

4. Don’t fret: recordings usually favor the employer

Most people regret the recording. Most employment-lawyers (including the plaintiffs’ bar) would say that ninety plus percent of secret recordings portray the plaintiff poorly. I have listened to some hilarious conversations of a plaintiff recording them saying something they would always regret. Usually, as a defense lawyer, I have to ask the plaintiff to produce any secret recordings because they do not want to share what they captured.

5. Pick up on the tells of employee recordings

Although not uniformly true, there are a few warning signs before an employee plans to surreptitious record a conversation with a supervisor. Typically, the employee has requested a meeting to discuss a matter already concluded. The point is obvious: the employee wants to rehash the conversation in a different light hoping for a Matlock moment and capture some confession. Second, and as corollary to point one, the employee oddly works the previously resolved topic into the new conversation. When you pick up the signs, go back to point three: act impeccably and you have no fears.