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Is My Employee Recording Me?

It is not unusual for supervisors today to wonder whether they are being recorded by employees during meetings when performance issues or discipline are being discussed. “Can they do that?” I am often asked. Interestingly, while an employee may not have a legal right to demand that a disciplinary meeting be recorded, in most states, it is not illegal for an employee to surreptitiously record their supervisor or manager during meetings where performance issues or discipline are being discussed. And, in fact, employment lawyers are increasingly seeing recordings used as evidence in employment lawsuits.

So what is an employer to do? Some employers have adopted policies prohibiting clandestine recordings in the workplace. Initially, courts held that employers could discipline employees for violating these policies, even when the employees claimed that the recording was “protected activity.” More recently, however, the National Labor Relations Board (“NLRB” or the “Board”) has taken the position that such policies could reasonably be construed to ban protected concerted activity under the National Labor Relations Act. While a future NLRB may revisit this issue, most policies prohibiting recording in the workplace are likely to be problematic under the current Board’s rulings unless they are narrowly tailored to protect confidential information. For example, a policy that prohibits taping a conversation with a nurse about her handling of a particular patient might fall into this category because of the concerns about protecting patient privacy.

Supervisors today should assume that any disciplinary conversation may be recorded and act accordingly. Talk to your human resources manager, in-house counsel or outside employment lawyer about what you are going to say before you meet with the employee. Words matter, so talk about how you are going to deliver the message to the employee. When you meet with the employee, stick to the script and maintain a calm and respectful demeanor. Don’t let the employee bait you into unnecessary arguments about irrelevant issues.

Also, resist the temptation to surreptitiously tape the conversation yourself. In addition to the fact that judges and juries do not care for people who secretly tape others, an employee is much more likely to have a viable invasion of privacy claim against the employer who tapes a conversation without the employee’s consent than the other way around. I have had more than one plaintiff’s lawyer tell me that they regretted having allowed their client to surreptitiously record a disciplinary meeting because the recording ended up making the supervisor more sympathetic and credible than their client.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.