Recording conversations used to be thought of as the work of James Bond or some shady character in a trench coat with an oddly conspicuous carnation in his lapel.
But mobile technology has made businesses increasingly vulnerable to having work discussions recorded every day. Anyone with a smartphone can potentially capture exchanges with colleagues, supervisors, HR professionals or executives without their knowledge.
Not surprisingly, such recordings are being presented more frequently in discrimination litigation. Employees who catch unsuspecting co-workers and managers making inculpatory statements are looking to use the recordings to assert and prove legal claims. This can be very powerful evidence. Admissions “from the horse’s mouth” tend to leave a strong impression on a judge or jurors, and they can be hard to explain away by legal sophistry or denials.
Supportive Case Law
In most jurisdictions, it is not unlawful to record a conversation as long as one party knows about the recording.
A minority of states require both parties to the conversation to consent to it being recorded, but even this higher standard is not fail-safe. For example, in Barr v. Arco Chemical Corp., 529 F. Supp. 1277 (S.D. Tex. 1982), the federal court dismissed the employer’s counterclaim alleging a violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act by the plaintiff-employee.
The employee had surreptitiously recorded a closed-door meeting at which his supervisors discussed his termination and then played the recording for third parties, including other Arco employees. The Pennsylvania statute makes it unlawful to record an “oral communication” that is “uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.”
The court’s decision acknowledged that the statute appeared to be applicable to the circumstances of the case. But then it interpreted the phrase “an expectation that such communication is not subject to interception” to mean that the company did not have a reasonable expectation of privacy in a conversation about the employee’s termination.
Clearly, rather than relying on statutory interpretation, the better practice is to implement a written “no-recording” policy.
Even in jurisdictions where recording is lawful, there is nothing that precludes an employer from adopting a policy stating that the surreptitious recording of conversations with co-workers is not allowed and that an employee who violates the policy is subject to discipline, including termination.
In the context of Title VII of the Civil Rights Act of 1964, termination of an employee for violating a no-recording policy can satisfy the second prong of the McDonnell Douglas burden-shifting test, in which the employer must produce evidence of a nondiscriminatory reason for the adverse employment action against the plaintiff. Several courts have upheld the termination of employees for making or attempting to make recordings to preserve evidence.
Why Have a No-Recording Policy?
There are several benefits to adopting a policy that bans surreptitious recording:
- It dissuades employees from recording conversations.
- It encourages trust and candid conversation.
- If knowledge of the recording occurs only after litigation has commenced, the employer may be able to use the after-acquired evidence doctrine to stem its exposure from the point when the breach of company policy was uncovered.
For example, in Mohamad v. Dallas County Cmty. College Dist., 2012 U.S. Dist. LEXIS 141578 (N.D. Tex. 2012), the court dismissed on summary judgment the plaintiff’s Title VII discrimination and retaliation claims on the grounds that the plaintiff’s surreptitious recording of conversations with his supervisor—which violated company policy—constituted a legitimate, nondiscriminatory reason for the termination of the plaintiff’s employment. The critical element in this line of cases is that the no-recording policy was written and explicit in alerting employees that its violation would result in discipline, including termination.
Absent a Policy
What happens if no written policy existed at the time the secret recording was made? Are employers doomed to pay dearly for the loose-lipped utterances of their employees and managers?
Not necessarily. There may be protection based on the inadmissibility of the recording under the Federal Rules of Civil Procedure and the Federal Rules of Evidence.
Under Federal Rule of Civil Procedure 56(c)(2), “a party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Federal Rule of Evidence 901(a) requires that all documents and materials to be submitted into evidence be authenticated, “by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
Courts weighing admissibility of recorded conversations to decide a motion for summary judgment require that the proponent provide a foundation or properly authenticate the recording. That is, to prove authenticity of a recording, the party offering it in court must present evidence sufficient to support a finding that the recording is an accurate reproduction of the matter recorded. For example, in Spencer v. Berger, 2009 U.S. Dist. LEXIS 58029 (D. Idaho 2009), the court refused to consider audio-recorded and transcribed conversations with third-party witnesses in resolving the motion for summary judgment due to the lack of foundation.
Following this case and similar precedent, an employer may be able to challenge the admissibility of a recording on the basis that it contains statements that are not authenticated, that are unsworn and/or that constitute inadmissible hearsay.
Tampering with Evidence
Keep in mind that even authentic evidence can be called into question if there has been what is known as a “Rose Mary Woods incident.” Woods was President Richard Nixon’s secretary; she went down in history for erasing an 18.5-minute segment of one of the infamous Watergate tapes. If there is any suspicion that the plaintiff (or plaintiff’s agent) tampered with the recording by erasing or splicing sections, it may be worth subjecting the recording to a forensic exam, which could uncover circumstances that would preclude admission of the recording or otherwise be helpful in challenging the plaintiff’s credibility.
For example, if the plaintiff has erased sections of the recording, such an act could constitute tampering with evidence or a violation of a litigation-hold notice. Even if the recording is not held to be inadmissible in its entirety, the employer may be able to obtain an instruction of adverse inference concerning the subject matter of the deleted section of the recording. If luck is smiling, the forensic exam may even uncover conversations that were recorded over, which could be of value in exculpating the employer or impeaching the plaintiff-employee.
The following three sample policies show how employers can try to nip the problem of recorded conversations at work in the bud:
Unauthorized electronic surveillance of employees is disruptive to employee morale and inconsistent with the respectful treatment required of our employees. For this reason, no employee may record the conversation of another employee without his or her full knowledge and consent.
No employee may record, by any means, a conversation with another employee unless all of the following criteria are met:
- A legitimate purpose for the recording.
- A recording device in plain view.
- Written authorization from the supervisor of the employee who wishes to record the conversation.
Secret recordings are strictly prohibited unless authorized in writing by legal counsel. A violation of this provision may result in disciplinary action, including termination.
There is no doubt that the cry for clearer guidance will grow louder as the use of recordings in litigation becomes more prevalent.
Until then, there is little downside, and much potential benefit, to including a no-recording policy in your employee handbook.
Nina Massen is assistant general counsel—HR, Compliance & Ethics at Novitex Enterprise Solutions Inc. in Stamford, Conn. She can be reached at firstname.lastname@example.org. Opinions in this article do not reflect the view of Novitex Enterprise Solutions Inc.