Are You Being Secretly Recorded at Work?

Employees use digital recording devices to support workplace complaints.

April 19, 2011, 11:46 AM

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 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

Katrina Patrick, a Houston employment lawyer representing Jonathan's case, estimates that more than half of the workers who come to see her bring audio or video recordings, photos, or electronic messages to the first meeting.

"Everyone walks around with our cell phones, and our cell phones are armed with all sorts of cameras and recording devices," she said. "I am actually more surprised when there isn't digital evidence than when there is."

In her 14 years as an employment lawyer, she said, digital evidence is the most effective kind of evidence she's seen.

While an employee's first-person account can outline a story in broad strokes, she said preserved emails, text messages or photos containing inappropriate advances can help resolve a case without ever filing a lawsuit.

Video and audio recordings can also be driving forces in reaching quick settlements, she said.

"You have someone on the phone ranting and raving and making stereotypes and degradations, that's going to get some attention as well," she said.

Audio Recordings Can 'Change Complexion' of an Experience

Ellen Dannin, a professor at Penn State Law School and former trial attorney with the National Labor Relations Board, said that even when the digital evidence can't be introduced formally, it can change a lawyer's thinking about a client's experience.

While at the NLRB in the 1990s, she said, she was taking the affidavit of an employee when he played a recording of an exchange he had at work.

"He had a little pen recorder and I listened to it, and the nastiness of the tone and the sarcasm of the employer, it just completely changed the complexion of the whole thing," she said. "In terms of our understanding, it really made a difference in thinking about the case."

But while digital evidence can help an employee find justice, experts say it can also come back to haunt them.

For starters, electronic surveillance laws vary from state to state.

Some states, such as Texas, New York and Colorado, permit audio recordings in which only party knows about the recording (the person with the device). Others like Michigan and Massachusetts require all parties to consent to a recording. Some companies also explicitly prohibit employees from recording conversations at the work place as part of their corporate policies.

Audio Recording Is Double-Edged Sword, Lawyer Says

"There are a lot of pitfalls with [recordings]," said Salvatore Gangemi, a New York employment lawyer. "It's a double-edged sword."

An employee once came to Gangemi's office with an audio tape supposedly demonstrating sexual harassment. But the recording revealed that the employee himself was trying to egg others on -- and with little success.

In other situations, a recording could harm a client if it reveal that he or she engaged in any wrongdoing, because once the recording exists, it has to be introduced into evidence.

Gangemi doesn't encourage clients to use recording devices, but said his "ears do perk up a bit" when he learns that a recording is available.

"I think there's always a concern that someone's not going to be believed," he said. "People feel 'this is the only way I can protect myself or have the protection I need in order to go forward.'"

In Jonathan's case, Patrick said he felt like he had no other option but to use his cell phone as a weapon. But she said that before people think about bringing a recording device to work, they should learn their states' laws and company policies to make sure that they're not inviting trouble.

"Who cares if you win the battle if you lose the war because you have illegally captured evidence," she said.

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