Although every situation is different, I would think twice before secretly taping employee meetings.
With more employees having smartphones that can record high quality digital recordings, I have been asked more and more frequently by supervisors whether they should protect themselves and record disciplinary meetings with employees just “so the record is clear.”
Recording seems like a good idea, because supervisors tell me, they believe employees are already taping them. Just look for example about the case my partner, Richard, blogged about a “Federal Jury Slams Black Owner for Calling Black Employee the “N Word.” Later CNN released the actual tapes in that case (which contain explict — although bleeped — slurs) and they are remarkably clear. I guess gone are the days of hidden tape recorders where the audio sounds like a bag of potato chips was being opened and shook across the microphone.
So, why shouldn’t supervisors tape a meeting with employees?
Any supervisor who considers secretly taping his or her employees should do a test run at home. The next time you sit down to have a discussion with your spouse about the household bills or your child about her curfew, hit the record button on your smartphone and tuck it away in your pocket. I am willing to bet that when you later play back that tape, it will start out sounding really good. After all, you’ve prepared your opening arguments. I am also willing to bet that as the tape goes on and the meeting became more emotional or hotly contested, you stopped sounding so rational and composed. In fact, by the end of the argument, you might have even forgotten it was being recorded.
Now imagine how quickly a disciplinary meeting can degenerate as employees become hostile or defensive. At best, the tape will show that you were flustered or kept repeating your same stock answers. At worst, you make an off-the-cuff comment, such as “I’m sick of you people,” and you are looking at discrimination claim.
Before any of you think that you can just delete or edit the bad tapes, think again. Let’s say you taped three meetings with an employee. One was horrendous so you deleted it and the other was good until the last five minutes, which had nothing to do with your meeting, so you erased those minutes. The third is the tape you think is going to win the case for you. Eventually, the questions at your deposition are going to disclose that there were other tapes that were destroyed or edited. Now the employee may be entitled to argue at trial that the jury should assume that the destruction of the other tapes means that the employee’s version of what happened at that meeting must have been true, which is why you deleted/edited the tapes.
In addition to the above problems, supervisors (and employees) should be aware that states have wiretapping laws. Remember Monica Lewinsky and her secret audio tape and all the trouble Linda Tripp got into for secretly recording the phone calls with Lewinsky? Those wiretapping laws may prohibit secret tape recordings of meetings depending on your state’s laws.
So, this is why I would think twice about secretly recording employee meetings.