Best Employment Discrimination Attorney Reply: Can I secretly record conversations I have with supervisors as evidence of his discrimination and harassment? How do I gather evidence of sexual harassment by my supervisor at work? Can I be fired for secretly recording conversations at work?
Sometimes, we see the writing on the wall. My mother always taught me to trust my gut instinct, because it’s usually right. She told me that people don’t always tell you how they feel about you, but they’ll usually show you—pay attention to what your gut tells you. She’s right. Sometimes, employees get a feeling that they are going to be fired before they are actually terminated. Or maybe your boss is making comments over and over again that you know would be race/color, religion, gender/sex, national origin, age, disability discrimination – but the boss only harasses you when no one else is around. One of the most commonly asked questions The Spitz Law Firm is asked on a daily basis is, “Can I record my conversations with my boss without him knowing?” The answer to that is a little complicated.
As a general rule, under Ohio and federal law, it’s legal to record conversations that happen at work. BUT, and this is a big but, one of the participants of the conversation must be aware that the conversation is being recorded. In other words, as long as the person recording the conversation is actually participating in the conversation, it’s probably okay. These laws are found at Ohio R.C. § 2933.52, and federally at 18 U.S.C. § 2511(2)(d). This means you can’t stand behind a door and secretly record two supervisors having a conversation about employees. As a kid, this was my dream. I would always try to secretly record my sisters in hopes of getting them in trouble later. I would hide behind furniture, or leave my tape recorder in their room, HOPING that they would say something that I could use to my advantage later. I was an annoying sibling to my sisters—and I was often grounded for it. Today, if an employee tries to use these same tactics on their co-workers or boss, they may suffer a similar fate. Court’s say that this type of secret recording is illegal. But, if you are actively engaging in the conversation, you can probably record the conversation. Long story short, if you’re going to record the conversation, make sure that you’re actively engaging in the conversation that you’re recording. This satisfies the law, because Ohio is a one-party consent state—and one party in the conversation (you) has given consent to record.
So, for the most part, if you are being discriminated or harassed based on your race/color, religion, gender/sex, LGBTQ+ status, national origin, age, disability or because you asked to take FMLA leave or filed a Worker’s Compensation claim, you should keep the recording function open on your phone and record away. That being said, there are some exceptions that our employment discrimination lawyer will go over to show that you still have to be careful.
You may be wondering, “Can I be fired if my employer has a policy against recording conversations?” Well, that complicates things. First, understand the most employer don’t have this type of policy, but you should check. Courts in Ohio say that these types of provisions in contracts are usually enforceable, and an employer can fire an employee for violating that policy. In Jones v. St. Jude Med. S.C. Inc., Chyrianne Jones worked for St. Jude Medical Hospital. She could see the writing on the wall—she suspected that St. Jude’s was trying to fire her. Jones started recording her conversations at work, in an attempt to protect herself and prove that she wasn’t violating policy. However, just by recording her conversations at work, she was inherently violating hospital policy as well as a few HIPPA laws. Specifically, St. Jude’s Code of Business Conduct provides that:
No employee may tape record (or otherwise preserve) a telephone conversation or other conversation unless all persons who are being recorded are informed of the recording and explicitly consent to the recording in a manner that is preserved in the recording….
In addition, St. Jude’s Employee Handbook states that recording is against the rules:
Recording, by … audio … any conversations… while on company premises or while performing Company business without the knowledge and consent of all parties to the communication and without obtaining the prior approval of the acting employee’s manager and Human Resources.
Given that the employee admitted to recording, the court held: “Plaintiff argues that she was forced to make the recordings in order to preserve evidence for her discrimination and retaliation claims. Again, this Court has already rejected a similar argument.” She effectively sabotaged her case because she violated company protocol by not checking the rules first. As our employment discrimination lawyers have previously blogged about, gathering evidence for a potential case is very tricky. (See: Can I Take Evidence With Me When I’m Wrongfully Fired?) So, if your workplace has a policy against recording conversations, you should consult with an attorney to discuss your best options.
A few Ohio courts have even upheld employee terminations, even when the employer didn’t have a no-recording policy. The Court in Briner v. National City Bank, an unreported case from 1994, explained that the employee who secretly recorded a conversation with a supervisor was lawfully fired when his boss found out that he recorded the conversation. It was okay because Briner was an at-will employee and could be fired for any reason. National City Bank was able to point to the secret recordings as a legitimate reason for terminating Briner, because the reason they gave for terminating Briner wasn’t illegal.
The Briner case is a perfect example of why being overly cautious is a good idea. Briner was trying to prepare for the impending litigation he would bring against the bank because he saw the writing on the wall. But, ultimately, he admitted to recording his conversations with his boss, while he was still employed and was then fired for the recordings. Again, if you are considering recording a conversation with your boss, you should consult an attorney. But the big lesson to be learned from Briner is to not tell anyone about the recordings while still employed.
In this era of technology, it is increasingly tempting to record everything. There’s almost an unwritten rule in society now, we are expected to document everything that happens in our life. Whether that be posting a picture on social media for everyone to see or texting a friend—social media brings a whole new host of challenges for employment lawyers. This is, of course, a good and bad thing. Some things at work are worthy of documentation. The National Labor Relations Board’s General Counsel agreed. The NLRB clarified that some employment contracts that have a total ban on recording should not be upheld because employees have legitimate interest in participating in protect concerted activity. This means that the NLRB recognizes that employees should still be able to protect themselves against unfair working conditions, but the interests of the employers should still be considered. This rule isn’t black or white. It’s very gray. There are a ton of different factors that courts take into consideration when determining if a per se ban on recording in the workplace is lawful. In other words, you should speak with an employment attorney.
There’s a case out of the Second Circuit Court of Appeal that explains the NLRB’s rule further, Whole Foods Market v. NLRB. Whole Foods made a policy that put a “wholesale ban” on recording at work. The United States Court of Appeals for the Second Circuit held that the grocery store chain’s rule was unlawful. The Court explained that using recording devices can constitute protected activity under the NLRA for the following purposes:
- Recording images of protected picketing.
- Documenting unsafe workplace equipment or hazardous conditions.
- Publishing discussions about the terms and conditions of employment, including discussions with management.
- Documenting inconsistent application of employer rules.
- Recording evidence to later use in judicial or administrative proceedings.
Wait, hold on, didn’t I just say that you could get fired for recording evidence. Yes, but those cases were older and NLRB rules do not give you an independent case of action for wrongful termination. It also really depends on the manner that the conversation is recorded and how the policy is worded. Sorry this is such a gray area of law still. This is why attorneys exist. To help employees wade through the murky waters, and sort through all this “gray area.” (See: Can I Be Fired For Refusing To Go Along With A Massive Cover-Up of Illegal Activities At Work?; and Help, I Got Fired Today And Can’t Afford An Attorney! and I Was Fired Today For Reporting Food Safety Violations! Can I Sue?)
The main take away from this discussion is that before secretly recording a conversation at work, an employee should take a close look at their employee handbook. Keep an eye out for specific provisions that mention recordings at work. Most handbooks include cell phone use at work, however, just because the employee handbook dictates when, where, and how an employee may use their cell phone at work, does not necessarily ban recordings. Pay close attention to the wording. Then, after you have made recordings, don’t tell anyone about them. Lastly, come quickly to an attorney that can help you determine what to do next.
Again, if you have any questions at all, please contact an employment discrimination attorney. Our experienced attorneys can help you decide the best course of action.
If you are searching “I need a lawyer because I was wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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