Secret Workplace Recordings: Helpful or Harmful to Your Case Against Your Employer?
Recording a conversation or interaction at work is easier than ever. Most individuals always have a phone capable of recording on their person throughout the day. It is thus no surprise that in recent years, employment attorneys have seen an increase in the number of individuals coming to them claiming to have recordings that allegedly support their employment claims. A recording very well could prove that an employee engaged in protected activity, that a termination was retaliatory, or that an employee was sexually harassed by a supervisor—all of which are critical issues in various types of employment claims. However, as with most things, secret recordings are not always all good. It’s worth considering the pros and cons to making secret recordings at work. Below are some things to keep in mind when considering whether making a secret workplace recording is a good idea.
Pro: Potential for Direct Evidence of Relevant Facts
Perhaps the most obvious benefit of making a secret recording at work is getting direct evidence of your employer’s unlawful activity. Consider an employee bringing a gender discrimination case who has a recording of her termination meeting wherein her boss claims that he was getting rid of her because he’s tired of dealing with the “bitches” at work and expressed his belief that his male employees arere more reliable because they aren’t so “hormonal.” That employee is going to have pretty strong evidence that the reason for her termination was inextricably tied to her gender. Or, consider an employee bringing a retaliation claim who has a recording of his boss stating that had the employee just “kept quiet,” he wouldn’t have had a target on his back. In both situations, the employee has direct evidence of the employer providing unlawful reasons for termination. Both examples make it extremely difficult for the employer to later claim, during a legal dispute, that it actually terminated the employee for legitimate, non-discriminatory, non-retaliatory reasons.
Pro: Avoid “He-Said-She-Said” Credibility Issues
Employment cases often come down to which party or which party’s version of events is more credible and believable. Using the examples above, without any recordings, the employers would have an easier time fabricating a legitimate, lawful reason for terminating the employees—such as poor performance or downsizing. In cases where the employer offers a legitimate reason for termination that differs from the employee’s proffered reason, it is left up to the factfinder to determine who or which version of events is more believable. The truth, especially in extreme cases, might not be the most plausible version of events. A jury might not find an employee trustworthy, even if they are telling the truth. Having a recording of critical relevant information can ensure the factfinder definitely knows what occurred or what was said without having to weigh the credibility of different witnesses or different version of events.
Con: Making a Secret Recording Might Be Illegal
Perhaps the most obvious con is that a secret workplace recording might, depending on the circumstances, be illegal. Arizona is a one-party consent state, meaning it is lawful to record a conversation if at least one party to the conversation consents to the recording. If an employee in Arizona records an in-person conversation they have with co-workers, then such a recording would, in theory, be legal. However, there are always nuances to consider.
In a post-COVID world where remote/hybrid work is common, it is very possible that participants on a phone or Zoom call are joining the conversation from different states. When any participant in the conversation is located in a different state that requires two-party (all-party) consent, it is best to err on the side of caution and assume that the wiretapping law of the two-party-consent state will apply. This means that if you are recording a conversation with your boss from your home or worksite in Arizona, but your boss is joining the conversation from their location in a two-party consent state, then recording the conversation without your boss’s consent might be illegal. If that is the case, then not only are you not going to be able to use the recording as evidence in your case against your employer (because a judge is not going to admit evidence obtained via illegal means), but you might be facing criminal charges for making the recording.
Con: Can Support Legitimate Disciplinary Action
Ensuring your secret recording is legal under the applicable state’s wiretapping laws is just one hurdle you have to overcome. Your employer’s workplace policies are an additional consideration. Even if you are legally allowed to make a secret recording in the workplace because you are recording in a one-party-consent state, such a recording might still violate your employer’s anti-recording policy. Generally speaking, employers are allowed to have anti-recording policies because such policies protect trade secrets and confidential information and foster an environment where employees feel comfortable speaking up and sharing concerns.
If you make a secret workplace recording in violation of your employer’s policies, your employer will be entitled to take disciplinary action against you for violating that policy. This is true regardless of any other legitimate claim you might have. Ultimately, you violating the anti-recording policy is a distinct issue separate from whether you have been treated unlawfully in a different context.
Con: Your Recording May Enable Your Employer to Use the After-Acquired-Evidence Doctrine
Let’s say you make a secret workplace recording but before you can provide it to your employer as proof that you are being treated unlawfully, you are terminated for a discriminatory reason. You subsequently bring a discrimination lawsuit against your employer. During discovery, you provide the employer with a copy of the secret recording you made. While you might be thinking you just proved your case and your employer will want to settle, your employer is likely to view the evidence very differently.
In employment cases, there is a doctrine called the after-acquired-evidence doctrine. This doctrine applies when employers acquire evidence of an employee’s serious misconduct after the employee’s termination, when the misconduct would have otherwise justified the employee’s termination had the employer known about it before making the termination decision. Consider a race discrimination case in which an employee makes multiple workplace recordings in violation of the employer’s anti-recording policy to document evidence in support of their discrimination claim. The employee is subsequently terminated because their supervisor is racist. In an attempt to get their job back, the employee contacts the employer a month after their termination and submits the recordings as proof they should be reinstated. As soon as the employer discovers the recordings, the employer has a valid reason to terminate or refuse to re-hire the employee—regardless of whether the original termination was unlawful. Because the employer now has proof that the employee violated applicable policy.
Employers use after-acquired evidence to limit an employee’s recovery in employment cases. Often, in a wrongful termination case, an employee can recover back wages (lost wages through the date of a final decision) and reinstatement or front wages (additional future lost wages after the date of final decision). The after-acquired-evidence doctrine allows employers to limit an employee’s recovery to back wages from the date of termination to the date the employer discovered the after-acquired evidence—effectively limiting back wages and cutting off front wages entirely.
Con: Your Recording Might Make You Look Bad Too
Often, even when a secret recording supports an employee’s claim(s), portions of the recording are also harmful to the employee’s claims, or just make the employee look bad. If you want to use a secret recording against your employer, you are going to have to provide the full, original, unedited version of any recording made. And if you made multiple recordings, you’re going to have to provide copies of them all to your employer during litigation—even if you would prefer to only use one recording that is particularly helpful to your case. You cannot pick and choose which recordings or which snippets of an hour-long recording you disclose. Every recording you made, in its entirety, is going to get disclosed to your employer. (Keep this in mind if you decide to edit or make snippets of any recordings. Always keep a copy of the original. If you do not, you could be sanctioned for spoliation of evidence.)
Conclusion
Documenting evidence in support of your employment claims is important. However, there are many situations in which making a secret recording at work is likely to be more damaging or harmful to your case than it is to be helpful. And there are other effective, less risky ways to document evidence in support of your claims. If you are in a position where you believe it’s necessary to make a secret recording at work, then it’s safe to say you are already in a situation where speaking to an employment lawyer would be helpful. An employment attorney can advise you about the risks associated with a secret workplace recording in your situation and advise you about alternative methods for effectively documenting evidence in support of your potential claims.
