One thing the Trump Administration has made clear about the workplace: It’s easier than ever for employees to record their bosses secretly. Omarosa Manigault Newman recorded shocking conversations with both President Trump and Chief of Staff John Kelly while she was working as a White House staffer, including when she was fired by Kelly in the Situation Room, supposedly without Trump’s knowledge.
Given that the recordings took place in what is supposed to be one of the most secure locations in the United States, it’s likely that similar activities occur in more normal workplace settings every day.
This doesn’t come as a big surprise. More than half of all workers in the U.S. are unhappy at work, according to the Conference Board. Jerk bosses are a big contributor to the problem. About 50 percent of all workers who leave their jobs do so to escape a bad manager. Some of those managers may be merely inattentive or disorganized, while others are insecure, arrogant, or abusive.
It can be hard as a worker to get upper management to take you seriously about the misery you suffer, especially if it comes down to your word against your supervisor’s. Employees can possibly get the upper hand with a harassing or bullying boss by saving emails, chats, and screenshots, and perhaps by secretly recording them.
While a recording might be a smoking gun to show mistreatment, either in court or in an out-of-court settlement negotiation, there are some things you should know before you start gathering that evidence.
It’s not always legal. Recording conversations either in person or on the telephone requires some level of consent. In 38 states and the District of Columbia, only one person (i.e., you) who is a party to the conversation needs to be aware that it is being recorded. That means you cannot secretly record conversations with other people that you are not involved in.
In 12 states including California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington State, it is illegal to record a conversation unless both parties are aware of it. That effectively makes secret recordings impossible. For avoidance of doubt, some experts advise that you always ask “do you mind if I record this?” when you’re thinking of recording.
Employer policies may bar recording conversations. Let’s say you are fired by a hot-headed boss with an irrational grudge against you, and you secretly record the event. Yes, it would make your boss look bad, and possibly subject to disciplinary action, but it might not help you if making a secret recording is against the company’s policies. If you are rehired because the manager was in the wrong, you could be fired again for violating the rules. Experts say you should consult the employee handbook to see what is allowed and what is not.
It could ruin your reputation. Planning to get another job in the same industry? We all know that word gets around, and that the world is quite small when it comes to one’s reputation. Being known as the person who engaged in secret recording doesn’t make you sound like the most appealing job candidate. People often feel violated if they are recorded, and can make you seem more like an aggressor than a victim.
A better option might be to find a friendly, neutral employee who can serve as a third-party observer to support your allegations and testify in court, if necessary. Another option is to request, through the litigation process, access to any security footage, recordings or other records the company may have gathered on its own. Businesses are engaging in more general surveillance of their workers. You might as well use that to your advantage.
Do you think were harassed at work or by a co-worker? Visit our workplace harassment FAQ page for more information. Ready to see if you have a case? Contact us online or by phone at 877.858.8018. All inquiries are protected by the attorney-client privilege and kept CONFIDENTIAL. (There is never a fee for a consultation.)