Are You Being Secretly Recorded at Work?

April 19, 2011— -- In the spring of 2010, Jonathan, a Houston-area nurse in his early 30s, burned through an unusually large chunk of cell phone minutes. It was not because he was making extra calls; he was using his cell phone to secretly record conversations at work.

After his supervisor allegedly made a series of unwanted sexual advances toward him and other co-workers, Jonathan, who spoke to ABCNews.com on condition of anonymity, went to human resources and asked to be transfered out of his department. After first telling him the move would be possible, an HR officer at the hospital where he worked later backpedaled, so Jonathan decided to take matters into his own hands.

Over the course of the next three months before he was dismissed from his job, Jonathan covertly recorded 15 to 20 conversations with hospital administrators discussing his sexual harassment complaint and transfer request, some of which lasted as long as a couple of hours, he said.

The recordings captured discussions with human resources officials, ethics committee members, his supervisor and even the hospital's CEO. In one instance he said he taped officials "yelling" at him, and in another exchange he said he recorded a human resources manager saying, "get out of my office and get out of the hospital."

"I needed to get their information down on recording because they were already backtracking on what they said they were going to do," he said. "It was like David and Goliath. It was like a little worker bee nurse taking on the whole hospital."

Jonathan and his lawyer have filed a lawsuit against the hospital for discrimination and retaliation, and he intends to use those stealth recordings as evidence to support his allegations.

Assume Workplace Conversations Are Being Recorded, Employment Official Says

If you're surprised by Jonathan's tactics, you shouldn't be. Labor experts and employment lawyers say that as cell phones and other digital devices have become more common, employees have gotten increasingly savvy about using high-tech tools to record what they consider discriminatory or inappropriate activity at the office, often in secret.

Joe Bontke, an outreach manager for the Equal Employment Opportunity Commission in Houston, said he estimates that one-third of the people who come to the Houston E.E.O.C. office to file discrimination complaints bring some kind of digital evidence with them, such as audio and video recordings, email messages, text messages and photos. (The figure is based on observations, over the past two years, of meetings between E.E.O.C. investigators and employees filing complaints, he said.)

"The electronic footprints that we leave in the course of what we're calling textual harassment -- or some form of inappropriateness -- seem to be easy to gather and capture," he said. "And it was much more difficult in the past."

Hard figures about the frequency of secret workplace recordings are tough to come by, but Bontke said it happens often enough that employers should assume that all meetings with employees, including those during the application process, are being preserved in some kind of digital format.

"I say assume that whatever is happening is being captured in some recording device... And manage that ultimate risk," he said.

Lawyer: More Surprised When Clients Do Not Have Digital Evidence