We did a post the other day entitled “Should You Secretly Tape Your Meetings With Employees,” and advised that you should “think twice” before doing so.
Comments flew in quickly regarding the legality of secretly taping:
Noah A. Frank, a Chicago-area employment attorney, wrote that:
“In Illinois, audio recording would likewise be a felony as long as one party was unaware of the recording (absent a criminal investigation, etc., 720 ILCS 5/14, et seq.). So, ‘secret’ recordings are going to be illegal in the employment context. There are ways around it (depending on how conservative vs. risky your corporate employment strategy is) such as posting notices for a certain room that recording is always a possibility and ensuring that employees consent to being recorded – but to some degree this defeats the ‘secret’ recording you’re seeking.
Depending on the situation, it may be advisable to discipline (incl. term.) an employee that records others (violation of the eavesdropping statute, privacy concerns, trade secret and confidential information breaches, etc.).”
Yvonne T. Zertuche, a Houston HR executive, noted that “I believe it is legal in Texas to record a conversation if one of the parties agrees. However, if one is considering it, I would move away from secrets. A supervisor can make it a practice to record all performance related discussions, showing it a common practice. The only downside I see is storing all the tapes.”
Michelle LeGault, an Employment and Education Law Attorney said: “In Georgia, one party to a conversation may secretly tape it without running into criminal penalties. In the employment context, I’d recommend that the supervisor state at the beginning that the meeting is not being taped, put his/her smartphone on the table, and ask the employee to state whether s/he is taping the meeting and also ask that s/he put his/her smartphone on the table. Could allow for a more productive meeting if it increases mutual trust and frank dialogue.”
Amy Stephson, an Employment Attorney and Coach said: “In some states, e.g. Washington where I practice, it is illegal to secretly tape people. For good policy reasons I would argue!”
One practitioner also talked about the costs of taping:
Stephen Levinson, who describes himself as an experienced and creative employment lawyer (we like that description!), noted: “I agree with this [post]: whenever I have had to deal with recordings it has added hours of time (and cost to my clients) in listening and transcribing. Most employers are best advised to take a good note of internal meetings. There may be some exceptions but as a general rule I give the same advice to my clients.”
Another skeptical reader challenged the notion that witnesses tell the truth:
Kathleen Schoen, an attorney at Tilford Dobbins Alexander, LLP, commented: “Eventually, the questions at your deposition are going to disclose that there were other tapes that were destroyed or edited…” This is assuming that the supervisor will own up and tell the truth at the deposition and in response to discovery requests! IF uncovered that there were actually additional recordings or that the recordings were edited, I think the plaintiff would have a very good argument for an adverse inference/spoliation jury instruction.”
Keep your comments coming, we love hearing your thoughts!