Can you record your boss at work without him or her knowing?
The recordings that reality TV star and former White House special assistant Omarosa Manigault Newman made of Chief of Staff John Kelly and President Donald Trump can be seen as a publicity stunt for her book tour.
Or another distracting episode in the Trump news cycle.
Or even as an alarming question mark about security in Trump’s White House.
When asked on the Today how she captured the Kelly recording, which she said came from the Situation Room, Manigault Newman would only say “I’ll just leave that to your imagination.”
For human resources officers and lawyers in the public and private sector, the recordings are a reminder of how easy it can be – especially in far less securityfocused workplaces – for workers to tape the potentially damaging words of a boss or the content of a meeting, thanks to audio recording tools inside the iPhones and iPads sitting on seemingly every worker’s desk.
“I hope most employers would have considered it and thought about it, but unfortunately sometimes you need something as high profile as (the Omarosa story) to think ‘wait, this might have implications for us in the workplace,’” said Jason Gavejian, a principal in the privacy and data security group at the law firm Jackson Lewis.
Whether employees are free to record conversations at work
– at least outside high-security environments like the White House – largely depends on corporate policies about recording in the workplace and whether they and the person or people they’re recording are in a state or province with “one-party” or “allparty” consent laws. In a state or province with one-party consent laws, like B.C., only one party of the conversation (typically the person doing the recording) has to be aware of the recording; states and provinces that have two-party or all-party consent laws require everyone involved to give permission.
But the ubiquity of the iPhone and other handheld devices and the proliferation of the #MeToo movement means more workers are using those tools to make recordings they hope might serve as evidence in the future, say lawyers representing both companies and employees.
“With the iPhone, everybody has a tape recorder in their pocket at all time,” said Lisa Banks, a partner at Katz, Marshall & Banks, which represents workers in areas such as sexual harassment, whistleblower cases and wrongful termination. “We see a lot of people coming to us with tape recorded termination meetings or tape recorded harassment. It’s just so easy to do now that it happens all the time.”
Banks says that such recordings don’t always have usable evidence, and warns that even if employees know the consent laws of their state, most workers are at-will employees, meaning if their boss finds out that they’re recording conversations on the job and doesn’t like it they could be shown the door.
“If they think I’m being dishonest and sneaky, they could decide I’m a risk,” she said.
It gets more complicated and nuanced, however, if the recording is being used to show that discrimination or retaliation occurred against an employee, she said.
“I’m often surprised that employers haven’t moved to having no cellphones in meetings,” she said. “I’m surprised we don’t see that a lot more.”
We might soon see it more often, Gavejian said. In 2015, the U.S. National Labor Relations Board ruled that no-recording policies by employers violate workers’ right to engage in “concerted activity” about the terms of their employment. But in June, the NLRB issued guidance saying such no-recording policies would not necessarily run afoul of the National Labor Relations Act, which protects employees’ rights to improve their working conditions.
Gavejian thinks that may prompt more employers to add no-recording policies.
“This back-and-forth the board has gone through makes that a little bit confusing,” he said, “but the most recent guidance in June makes it clear the policy itself is not going to be a violation – it’s how it’s applied.”
Virginia is a one-party state, while Maryland requires the consent of all involved parties. Some jurisdictions have certain caveats – Washington D.C., for instance, says a recording with one-party consent is OK but will become unlawful if the recording is then used to commit a crime or other “tortious” act.
Andrew Boutros, a partner at Seyfarth Shaw in Chicago, says that if an employee “goes and surreptitiously records their supervisor or boss in order to gain an advantage to get something that they otherwise would not get” – blackmailing them, say, for a promotion – the recording can become illegal, and face steep punishment.
Gavejian said the ubiquity of recording devices means it’s more important than ever for companies to train those who have tough conversations with employees about such things as terminations to be very careful about what they say.
“It’s so easy, frankly, to turn on the recording feature,” he said. “We always recommend, if you’re going to have a discussion, you should be prepared for your statements to ultimately come out later whether through recording or the employee saying this is what occurred. It’s just the same as what we would recommend with email.”