Published on May 6th, 2014 by Alan L Sklover
“When it comes to privacy and accountability,
people always demand the former for themselves and the latter for everyone else.”
– David Brin
ACTUAL “CASE HISTORIES”: I remember it like it was yesterday, although it was many years ago. Alexandra, Director of Nursing Services at a 600-bed hospital in central Georgia, contacted us for help in negotiating her severance. Alexandra was a designated member of the Hospital’s eight-member Management Team. Each member had particular responsibilities in running the hospital, including Director of Facilities, Director of Education Services, Director of Nursing Services, Director of Finances, and the like.
Alexandra’s hospital and another one that was much larger had merged, and since the combined institution did not need two Directors of Nursing Services, she had been chosen for position elimination. She understood the rationale, and accepted it as an unavoidable fact of life. What Alexandra did not understand, and what Alexandra thought was eminently unfair, if not illegal, was the how much severance she was offered in relation to the severance that was offered to other Management Team members of her hospital.
Of the eight Management Team members, Alexandra was one of only three with a Ph.D. Of the eight Management Team members, Alexandra had the longest tenure working for the hospital, 14 years. Of the eight Management Team members, Alexandra had the most employees under her supervision. Of the eight Management Team members, Alexandra was the only member who was female.
What upset Alexandra so much was that some members of the Management Team had been given a year of severance, and some had even been given two years of severance. Alexandra was given just three months of salary continuation as severance.
To find out why she was provided severance of just one-eighth of the severance provided to some of her seemingly less-deserving peers, Alexandra called Martha, the acting Human Resources Director, who was not a Management Team member. After expressing her upset over her severance, Alexandra asked Martha why there was such a disparity in severance packages. Martha was quite candid, “Of course you know why. It’s because we are considered ‘just girls’ around here. It’s because you are not a member of the ‘Boys Club.’ It’s because you have a husband. And it’s because they think – in fact, they have even said – you should be home with your kids, anyway.”
Alexandra was not surprised at all to hear what Martha said. Actually, she was pleased, because she had audiotaped her conversation with Martha, and it was clear and quite convincing. She then made copies of that recording, just in case she accidentally lost the original.
As you might imagine, the recording was quite convincing in negotiations. And as you might imagine, the negotiations were very successful.
LESSON TO LEARN: Whenever we need to “prove” what took place, or when, or why, there are several types of evidence we can use: (i) documentary evidence, which usually means some type of papers, (ii) physical evidence, which means something you can see or feel, (iii) circumstantial evidence, which means the various facts surrounding what took place, and (iv) testimonial evidence, which is the spoken word.
One kind of testimonial evidence that can be especially convincing is “spontaneous speech,” that is, what someone says on the spur of the moment, usually when they do not know their words are being recorded.
Employees who feel aggrieved due to treatment in an illegal, improper or unfair way, often have an urge to make a recording of their conversations with their boss, their colleagues, or Human Resources. In earlier days, that required a recording machine that was large, vibrated, hummed and sometimes malfunctioned. These days nearly every “smart” phone can do the same job without so much as a hint of detection and with clarity and duration never before possible. It’s tempting, and it’s often quite useful, but there are some things an employee contemplating doing so should be aware of, and bear in mind.
WHAT YOU NEED TO KNOW AND CONSIDER:
1. As a “backdrop” to the subject of recording conversations, in this age of “digital-everything” everyone must presume that what we do, say and write might be brought to light. As a constant “working presumption,” these days we must all tailor our language and adjust our behaviors to a significant degree, because it has become so easy to record what is said, written and done. Whether it is email, Twitter, whispers, Facebook, telephone calls, or things said and done behind closed doors, you have to be prepared to hear or read about it on tonight’s news. It’s simply a fact of life – sometimes welcome, sometimes regretted – that is now reality in the digital age.
An old Yiddish saying seems more appropriate than ever: “If you don’t want people to find out about it, just don’t do it.”
My reminder to you: Just as you can record a conversation with another person, so too might other people record their conversations with you.
2. Whether recording a conversation with an employer is viewed as wrong or right may depend on (a) your underlying intentions and (b) the attendant circumstances. Sadly, there are times when people use a recording of what others say, write or do to hurt, embarrass, or extort, all of which are surely wrongful activities. If the intention behind recording a telephone call or meeting conversation is improper, then it would seem to most people that the recording is thus improper, as well.
On the other hand, if the purpose of recording a conversation at work is (a) to make a record of wrongful, improper or illegal activity, such as embezzlement, discrimination or retaliation, or (b) to make a record of your objecting to, complaining about or seeking to halt wrongful, improper or illegal activity, then making the recording of the conversation may be not only proper, but wise and commendable. Said differently, while the ends may not justify the means, the intentions may do so. (As is discussed further in Section 6, below, even many Courts ascribe to that analysis.)
And, too, whether recording a conversation at work is “wrong” or “right” may very well be an individual judgment, and the subject of honest disagreement.
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3. One very important “attendant circumstance” is whether or not parties to the recorded communication had a reasonable “expectation of privacy.” The law in almost every jurisdiction says that some conversations can be reasonably expected to be private, while others cannot be reasonably expected to be private.
Conversations and other communications that can reasonably be expected to be private would include (a) telephone calls, (b) meetings “behind closed doors,” and (c) those that are commonly deemed “confidential” or “privileged,” such as communications with lawyers, the clergy or between spouses. In these circumstances it is more likely that employers could strongly object to recordings, and Courts would more likely not permit recordings to be presented into evidence during litigation.
Examples of communications that are not reasonably expected to be private include (a) conversations on a crowded train or in the employee cafeteria, (b) a note or letter taped to a door in a public setting, or (c) a message written on someone’s Facebook page.
These examples are not comprehensive, but intended as illustrations only of the “attendant circumstances” of communications that might make their recording more or less acceptable in public, at work or in Court.
4. One thing you might look into: Does your employer claim that it has a right to intercept, record or eavesdrop on the communications of its employees? Employment is a kind of relation between two parties: employer and employee. Sometimes employers give notice to employees that “Anything you say on company telephones, or write on company emails, or using other company equipment, is capable of being reviewed by management, and you should have no expectation of privacy regarding it,” or words to that effect. In fact, you see such language in many Employee Handbooks.
If your employer gives its employees these warnings, by simple extension of logic it is equally fair to say that it does not consider recording conversations, in and of itself, wrong or improper. If recording is not wrong or improper, then surely your employer would have a harder time claiming your doing so is improper. Again, “What is good for the goose is good for the gander.”
In fact, more and more people and Courts are saying this to employers, which is essentially a mirror-image of what many employers say to their employees: “Anything management or Human Resources says or writes that is part of or in furtherance of wrongful, improper, dishonest or illegal behavior cannot be viewed to be said or written with an expectation of privacy.” I mean, who can claim that illegality is to be protected?
5. Consider whether your employer might have an express policy or rule that prohibits your recording conversations. If you are considering recording a conversation at work, perhaps you should carefully review your employer’s Employee Handbook, Company Policy Book, Compliance Manual, or similar set of “rules and regulations” to see whether recording conversations of others at work is deemed a violation of company rules.
If your employer’s Employee Handbook, Company Policy Book, Compliance Manual or other set of “rules and regulations” do not contain any such prohibition on recording, you have available to you, at the very least, a good argument that “To list what is prohibited, and not to include recording conversations, is clearly to suggest that recording conversations is not prohibited, and to impliedly grant permission to do so.”
Actually, that same point is expressed in a well-recognized rule of legal interpretation. In Latin it is, “Expressio unius est exclusio alterias,” which translates to “The expression of one thing is the exclusion of another.” In simple English, think of it this way: if you say “The apples in the bag are red and green” that means “There are no yellow apples in the bag.” Thus, if your employer’s Employee Handbook prohibits different kinds of workplace conduct, and does not mention recording conversations, you may have an effective “green light” to record.
6. Even if your employer has no written policy, rule or regulation against recording conversations at work, it could still claim that your doing so was “cause” for employment termination. While your employer may have no written policy, rule or regulation against recording conversations, it could still take the position that your doing so is a kind of bad faith or misbehavior, and thus “cause” for termination. Sure, as noted above, you might have a good argument against that position, the fact remains that you could still be terminated for “cause” for doing so, which you would then have to fight against. And don’t forget that “cause” termination could result in forfeiture of unvested equity, deferred compensation, and even ineligibility for unemployment compensation. Ouch!
It is for this reason among all others that we strongly recommend that (a) you think long, hard and seriously before recording any conversation at work, and (b) if you decide to go ahead and record, then you do so with extreme care not to get caught doing so. And, too, never ever mention to colleagues at work that you intend to do so, or have already done so, because “Loose lips sink ships.”
7. Believe it or not, some Courts have held that recording conversations at work may constitute a “legally protected activity” for which an employee cannot be legally fired or otherwise retaliated against. In recent years, a number of legal cases have reached the Courts arising from employees who were terminated for recording workplace conversations. The Court decisions in these cases to date have been quite mixed. Some Courts have viewed recording workplace conversations to be a kind of conduct within an employer’s discretion to either accept or reject as it wishes, and within an employer’s discretion to use as a basis of a decision to fire an employee.
However, other Courts have viewed recording workplace conversations to be a kind of “legally protected activity,” and therefore not permissibly a basis for firing an employee. These Court decisions have mostly arisen after an employee has used (or attempted to gather) recorded conversations to prove discrimination or other illegal employer activity. These Courts have reasoned that recording conversations is a kind of investigation of wrongdoing, or support for a complaint, and investigations and complaints of wrongdoing are almost always viewed to be “protected activity” in the workplace, for which employees cannot be retaliated against.
As they say, “the jury is still out” on this one. As noted above in Section 2, your intentions in recording a conversation are probably key to how you will later be treated by your employer if and when it finds out the recording took place.
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8. If you are considering recording a conversation to prove wrongdoing by your employer, such as discrimination, harassment or retaliation, take care to protect the recording’s “chain of custody.” “Chain of custody” means a chronological list of those people who have had possession, custody or control of – and, thus, an opportunity to alter – a recording or document. Obviously, the larger the chain of custody (and, too, in the absence of careful controls) evidence is simply less credible, and so it is less likely a Court will permit its introduction into evidence.
Why? Obviously, if many people had possession and control of a recording or the recording device, many people have had a chance to alter, modify or falsify it. And, too, if no controls were established to ensure that it was not tampered with, there is a greater likelihood that it might have been tampered with, knowingly or by accident. And, also, the longer it takes to put into a safe place or the possession of those who are commonly trusted, the less valuable it will be to you.
So, if you have made a recording and may want to use it in negotiating or litigating, you should (a) quickly make a copy of it, (b) give or email the copy to someone who is considered worthy of trust, (c) place it in a sealed box or bag, (d) do not permit others to take possession of it, and (e) keeping a record of each person who received a copy, from whom, and when.
9. 38 of the 50 U.S. states, plus the District of Columbia, require only “one-party consent’ to record telephone calls, while 12 require “all party consent” to recording a telephone call to give consent. Whether or not recording a telephone conversation at work is illegal depends on in which state the telephone recording was made.
As of the writing of this blog post, the following 12 states in the U.S. required all both parties to a conversation to be aware of, and consent to, the recording, and are referred to as “All Party Consent” states. In alphabetical order, they are:
California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington (state).
As of the writing of this blog post, the following 38 states in the U.S. and the District of Columbia require only one party to a telephone conversation be aware that it is being recorded, and so are commonly referred to as “One Party Consent” states. In alphabetical order, they are:
Alabama, Alaska, Arizona, Arkansas, Colorado, District of Columbia, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakato, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.
10. Recording telephone calls across state lines is riskier than purely in-state calls. This question commonly arises: “What rule applies if I call my employer from a “one party consent” state and he or she is at that time in an “all party consent” state; which law applies? Because the stakes are quite high in this context – that is, you could be violating a law – I always recommend you follow the law in the state which has the most restrictive rule.
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11. Recording your employer’s or its clients’ business secrets or other critically sensitive information could be called “taking their property,” and treated quite harshly. Imagine that you heard someone recorded a conversation in which a client of your employer discussed a new method of manufacturing diamonds, or the details of a very valuable business opportunity, or the identity of a company they were planning to purchase. If there is not a very good reason to make that recording, or to delete from it the very confidential material, you can expect to be characterized as holding on to someone else’s property without a good reason. In certain situations, you could even be accused of theft. Forewarned is forearmed: record only what you need, and no more.
12. For several reasons, it may be wise to put your recording into the hands of your attorney. What you say to your attorney, and what you give to your attorney, is considered “privileged,” meaning something you do not have to discuss with anyone else. Also, once materials come into the possession of your attorney, they may be characterized as “attorney work product,” and are also privileged. Also, because their professional licenses potentially would be in jeopardy if they altered a recording, attorneys are viewed as a bit more trustworthy than others.
For these reasons, in instances when our clients have made recordings of workplace communications, we have asked them to let us take possession of the recording. This way, (a) they can truthfully answer “No” to the question “Do you have a recording of that conversation,” and (b) we can carefully record the chain of custody. This is not wise in all circumstances, but is something to give serious consideration to if you record a workplace conversation.
P.S.: If you would like to speak with me directly about this or other subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations, just [click here.] Evenings and weekends can be accommodated.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the bumps in the road. Knowing your rights, your responsibilities, and the potential pitfalls of recording conversations at work may be an important part of that knowledge and understanding you need.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
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