Secretly Recording Your Boss or Coworkers = Bad Idea
In today’s world, nearly all electronic devices can capture high-quality audio and video recordings. And all of us have at least one of these devices. Both your smartphone and computer are able to capture crystal-clear recordings. As the old adage goes: “A picture is worth a thousand words.” That must mean that audio or video recordings are worth a million words, right? Wrong. Not in the legal context.
Given the prevalence of toxicity and general unfair treatment in the workplace these days, as well as the less common but very real occurrences of intentional discrimination, employees commonly believe that they can “gather evidence” of their mistreatment by using their electronic devices to record conversations. Employees see their devices as a simple means to preserve evidence that they may need later to prove that their boss or coworker was making offensive or even illegal statements. But you may do yourself much more harm than good by secretly recording your bosses or coworkers surreptitiously and without their consent.
Unfortunately, the “help” that these recordings provide is always outweighed by the risk they present. Generally, the person making the recordings is subjecting themselves to criminal and civil liability in two-party consent states through government prosecutions or facing civil counterclaims after trying to pursue their employment rights.
What’s a Two-Party Consent State?
Colloquially, the authority to record someone is often spoken about in the context of what a certain state’s laws allow. Such as whether the state is a “two-party consent” state or a “one-party consent” state. Stated differently, your authority to record your bosses or coworkers without their permission often depends upon your state’s law. For example, Massachusetts (M.G.L. c. 272 § 99) and New Hampshire (RSA 570-A) are “two-party consent” states. Meaning that it is illegal to record your bosses or coworkers in Massachusetts and New Hampshire, without their permission. Technically, Massachusetts and New Hampshire are “all-party” consent states, but from the perspective of an employment relationship, they function as “one-party” states. In an employment relationship, whether employee or employer, someone likely already wants to record someone else, and this is effectively “one-party” consent because the person who wants to record is effectively consenting to also be recorded themself. Generally, an employee only wants to record the specific person who is mistreating them, but you can imagine how complicated the “all-party” consent standard is when it comes to live or virtual group meetings, such as department-wide meetings or internal investigation meetings with human resources, a general counsel, and potentially others. In fact, the federal Wiretap Act (18 U.S.C. § 2511, et seq.) also imposes “one-party consent” type restrictions upon the person doing the recording. The laws that prohibit secret recordings are generally called wiretap laws. Like all laws, some exceptions may apply to the specific circumstances of your situation.
(Here is a link to a 50-state survey of recording consent laws published by Justia. Always be sure to consult with an attorney about a particular state’s laws before deciding to record someone without their permission.)
What are the Risks?
In Massachusetts, the person creating the recording could face criminal prosecution and civil liability. On the criminal side, the person creating the recording could be fined up to $10,000.00 and be imprisoned for up to five years in state prison. On the civil side, the person creating the recording could end up paying either $100.00 for each day that a violation occurs or $1,000.00, whichever is higher, punitive damages, and be liable to pay for the aggrieved person’s reasonable attorney’s fees and litigation costs. The risks of recording your bosses or coworkers are severe.
New Hampshire’s wiretap law presents similar risks. In New Hampshire, the person creating the recording could be convicted of a class B felony, which carries a potential seven-year prison sentence. New Hampshire also permits civil liability against the person creating the recording. Like Massachusetts, New Hampshire subjects the recording party to either $100.00 for each day that a violation occurs or $1,000.00, whichever is higher, punitive damages, and paying for the aggrieved person’s reasonable attorney’s fees and litigation costs.
What Should I Do Instead?
There are many things one can do to help them memorialize key facts or events in an effort to marshal evidence in support of potential claims.
Take notes. Keep a journal. Keeping a contemporaneous journal is a great solution, given the significant risks that recording creates. Your journal entries should include the five W’s – who, what, when, where, and why. It is also vital to add a time and date to your notes to help preserve the chronology of events. In fact, a contemporaneous journal will likely capture even more information than a recording would because it will include your perceptions, and other pieces of information that may not be captured through a recording. For example, a person’s demeanor, tone of voice, facial gestures, body language, and how the interaction left you feeling. Be sure to detail who said or did something, precisely what they said or did, the date and time of the interaction(s), where the interaction(s) happened, and why you think it happened. Use quotes to indicate the exact words used by the speaker.
Use e-mail to record facts and build your chronology. You may receive emails from others that contain key facts or evidence showing your mistreatment. Be sure not to forward those e-mails to your personal e-mail address. Aside from creating a trail that can easily be uncovered by your employer, you may be violating company information handling policies as well. Instead, print out those e-mails and then keep them in a “claim evidence” file that you can later provide to your attorney. Another idea is to keep a log of all of the important e-mails that include the date and time of the e-mail, the sender, the recipient(s), the subject line, and the important information contained in the e-mail. (This e-mail listing can help later on in litigation and enable your counsel to request specific e-mails in the discovery process of a case.) In addition to e-mails that you receive, you can also compose your own e-mails that can help preserve facts and events. For example, you may want to write and send e-mails to your supervisor or human resources detailing important meetings or statements that demonstrate your concerns. This helps create a contemporaneous written record of evidence rather than relying upon only verbal statements. Using e-mails to your advantage can significantly help your potential employment claims. If your employer routinely records phone calls for training or other purposes, then be sure to add any key conversations to your chronology journal so you remember them later on. On a related note, be sure to save any voicemails that you receive. You can record those because leaving someone a voicemail implies that the person speaking understood that their voice was being recorded because, after all, that is how voicemail functions.
An important word of caution: Be very careful not to take – intentionally or inadvertently – your employer’s proprietary and/or confidential information and/or trade secrets to help your potential claims. It may seem that simply downloading company documents or important e-mails is easier, faster, and more convenient than the more labor-intensive task of maintaining a chronology journal. However, like the recordings, these types of actions can create unexpected problems that may impact your potential claims negatively – or result in separate liability outside of your claims. We frequently encounter people who have created a gut-wrenching and expensive litigation side-issue by downloading confidential information or trade secrets in a good faith effort to preserve evidence or help their claims. With the assistance of computer forensics consultants, employers are able to examine nearly everything that employees do with their company-issued electronic devices, often down to the keystroke. If you upload files to DropBox, they know it. If you e-mail information to yourself using a web-based service like Gmail, they know it. If you attach a thumb drive, they know it. If you use your smartphone to take pictures of key documents, they can discover that, too (by seeking to subpoena your phone). Depending on the circumstances, employers can seek to impose the cost of this forensic investigation on you. If successful, that cost can easily tip into the $10,000-$25,000 range or higher.
Seek Legal Advice Early
Given the legal complexities involved with recording conversations and other methods of preserving potentially important information about mistreatment in the workplace, it makes sense to connect with an attorney as early as possible. We frequently assist employees who contact us when they feel like something bad will happen at work, and we guide them through the minefield of evidence preservation long before their legal claim ripens. Don’t wait until you are fired, ask for help early when you start to see the proverbial writing on the wall. Want to talk about your specific situation? If you are facing an adverse situation in the workplace, schedule a consultation with us.