By Anne E. Baggott
Employees’ secret workplace recordings are nothing new to many employers, but a recent, high-profile settlement may tempt employees to record their employers more often. In early September 2016, Fox News settled sexual harassment and retaliation claims of former anchor Gretchen Carlson for $20 million. Carlson had secretly taped the network’s CEO and President Roger Ailes for more than a year.
Employers should assume their employees are recording them in the workplace and act accordingly. The proliferation of smartphones with built-in recorders has made audio recordings possible at virtually all times. Most states allow one-party consent for recordings, which is accomplished when the party doing the recording knows they are recording, and therefore “consents.”
Here are five tips for handling secret employee recordings:
- Speak carefully in disciplinary and even routine meetings in which the terms and conditions of employment are being discussed. The words and voice of a supervisor making comments can be construed as evidence of discrimination or harassment.
- If an employee discloses a recording of unlawful conduct, take immediate action to investigate the situation and, if warranted, discipline the employee engaging in the conduct. Refrain from disciplining the employee who secretly recorded, even if you have a company policy prohibiting secret recording. Such action – and even a tone of voice – expressing unhappiness with the employee’s conduct can be evidence of retaliation.
- Be aware that the National Labor Relations Board has the opinion that a blanket ban on employee recordings violates the National Labor Relations Act. This issue is not settled in the courts, but such a ban increases the risk of a claim that the employer is violating the NLRA.
- If you discover an employee is recording a meeting, react very carefully and without anger or accusations. Calmly tell the employee you do not want to be recorded and ask the employee to stop recording. If the employee refuses to stop recording, end the meeting and seek the advice of human resources or legal counsel.
- Mandate that all employees – supervisors and non-supervisors – regularly receive comprehensive anti-discrimination and harassment training, and that such policies are enforced. A positive workplace culture, with clear policies and training against unlawful workplace conduct, reduces the risk of secret recordings by employees.
Finally, some plaintiff’s attorneys tell clients to record their employers as a matter of course. Knowledgeable counsel should be aware which attorneys do that. If you receive a charge of discrimination or similar claim from a plaintiff’s attorney, consult with legal counsel to discuss the likelihood that recordings exist.