Virtual Conversations Lead to Recording Dilemmas

Modern technology like Skype and smartphones are challenging legal precedents about recording work conversations

By Catherine Skrzypinski Jan 30, 2013

In the 2009 Academy Award-nominated film “Up in the Air,” George Clooney’s character, Ryan Bingham, is a corporate downsizer being trained to deliver bad news by video chat. Bingham struggles with this new aspect of his job, partly because he believes it’s the wrong way to deliver such news.

Experts in human resources say that while it is ideal to have face-to-face conversations with employees, the use of video chat in the workplace—including Skype and FaceTime, Apple’s video-chatting technology—is emerging as an important tool to reach a globally dispersed team, but it depends on the nature of the message.

“The use of video chat, Skype and FaceTime is the next best thing” to an in-person conversation, said Jonathan Segal, a partner at Duane Morris LLP in Philadelphia. “It’s not perfect, but it allows individuals to see one another and build rapport … it’s much better than a phone call.”

However, the proliferation of smartphones and tablets makes it easy to record both audio and video conversations—oftentimes without consent.

Experts agree there should be full disclosure to an employee that a video conference or phone conversation will be recorded. Also, employees should always be asked to give permission through written documentation stating they acknowledge and understand the request.

“Being upfront and direct about the policy, rather than using ‘gotcha’ tactics later on, promotes the greatest level of understanding and acceptance,” Brian Massie, a communication consultant for American Timing Group LLC, wrote in an e-mail to SHRM Online. “This also reduces the number of legal challenges later on.”

Cornelia Gamlem, SPHR, president of GEMS Group Ltd., a management consultancy with expertise in employee relations, said she finds the notion of recording conversations for documentation purposes “interesting and somewhat troubling from an employee-relations perspective.”

“[A]sking an employee if they consented to the recording would immediately put the employee on the defensive,” Gamlem said. “As an HR leader, my concern is that starting a discussion with a statement that it is going to be recorded and asking the employee for his/her consent will cause the employee to shut down and not be a willing participant in the dialogue. Also, it seems like someone is always watching, like Big Brother.”

Segal agreed with Gamlem. “I’m not wild about recording,” he said. “People are more stiff and do not act natural.”

Think Globally; Act Legally

Managers communicating with staff worldwide on video chat—whether to conduct performance reviews, discuss evaluations or take disciplinary action—need to take legal and cultural differences into account when it comes to holding and recording conversations.

“Never assume that the rules are the same worldwide,” Segal advised. “It’s always wise [for companies to] take the more cautious approach. …Always get permission to record.”

Employees in Latin America, the Middle East and Asia usually do not have privacy concerns, explained Brian E. Curtis, counsel at Becker Meisel LLC’s employment and labor law practice group. However, workers in Europe and North America tend to be more concerned about individual and privacy rights.

Telephone recording laws even differ from state to state in the U.S., Curtis continued. For instance, 11 states require two parties to consent to a recorded conversation. If one party is not notified, the other party could face felony charges.

In the other 39 states, a “one-party-consent” standard is in effect, Massie wrote, meaning a conversation of any kind may be recorded, provided that one of the parties agrees. Thus, if a manager and a subordinate have a conversation, and the manager knows about the recording, he explained, the subordinate does not have to know about it for it to be permissible.

Commenting on whether such recordings would be admissible in court, Curtis said an existing recording must be disclosed during the process of a case going to trial, while Segal said memos and the conversation recorded with the person’s permission would be admissible.

“The current laws [in the U.S. and worldwide] are archaic and are not meant to deal with modern technology,” said Ben Waber, president and CEO of Sociometric Solutions, a Boston company that uses sensors to track how people collaborate in the office.

Add the Human Touch to Employee Communications

While technology can bridge the distance between colleagues worldwide, HR experts said most people still prefer communicating face to face on the job so they can read facial expressions and tone of voice.

“Even though technology is good for delivering urgent and immediate messages, a lot of signals and emotions are missing in an e-mail,” Segal explained.

When it comes to communicating both good and bad messages, human resource professionals needs to find the right balance between using video chat and having a face-to-face discussion, Curtis explained.

“All bad messages shouldn’t always be in person,” he said. “This delivers a message that only ‘bad employees’ get in-person meetings. Bad news could be delivered via video, but another person who has full knowledge of the situation should be present.”

Massie disagreed: “Particularly with bad news, people tend to like to be told face to face, as it seems more respectful,” he said. His recommendation? The bigger the news, the more important it is to ensure a rich level of communication with employees.

Curtis noted that the following workplace conversations should always be conducted in person:

  • Layoffs or terminations. This particular conversation needs to be managed effectively because it could become confrontational. Managers should handle this potentially emotional dialogue with sympathy.
  • Orientation for a new hire. A transitional representative needs to be present to explain company policies and tasks. This sets the tone of the experience at a company.

If a videoconference is the only option, Segal advises companies to provide all staff with instructional material on how to use the videoconferencing system in the office.

Businesses must also be considerate of those who are visually impaired, Segal concluded, especially when it comes to face-to-face communication.

“In this case a company should take action to fly a visually impaired worker in, as being in the same room is a benefit,” he said. “He or she will be in tune with their surroundings. This sends the right message, both from a legal and a human perspective.”

Catherine Skrzypinski is a freelance writer in Toronto, Ontario, Canada.​

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