We have been overwhelmed with the response to our recent post: Should You Secretly Tape Your Meetings with Employees? 

One reader, bristled at the idea that anyone would  secretly tape – employer or employee.  Her comment led to the title of this post.

Judy Payne, commented in the LinkedIn Corporate Lawyer Network, on this tactic and other employer practices: “Personally, I find the notion of “secret” recording conniving, an assault on free speech, and a general betrayal of human decency. Whether it is an employer or an employee doing the recording, is the goal to up the ante? I don’t particularly like “secret” plans to dismiss an employee either. Warn them, tell them, put a policy in place. If they are treading on thin ice, let them know. Save your company lots of money in fees for outside counsel. Further, there once was a time when people were treated as valuable for their unique contribution, skills, and perspective. They were family. Employers, once going through the trouble of hiring them and training them, or just simply went through the process of letting them learn the ropes, would try to keep them. Employees, once over the joy of having a job that would put food on the table, tried their best. What happened to those admittedly old-fashioned values?”

HR managers and in-house counsel may be wondering why we, as management-side employment lawyers, are reprinting this comment.  The reason is simple. Ms. Payne’s views are the same views shared by most jurors. 

Most jurisdictions are “at-will” meaning employers can fire an employee for no better reason than the employee was the tenth employee to walk into the door that morning — kind of an awful twist on the “You’re our 100th customer!” promotions.  That does not mean it is a good idea for employers to do so. 

Juries are made up of human beings who either work or have spouses that work and who are dependent on those jobs.  In our experience as litigators, juries are willing to find for an employer where they feel the termination was “fair.” 

Fair means different things to different people, but usually involves some chance being given to the employee to improve their performance and avoid being fired.  In short, they agree with Ms. Payne, and think you should let your employees know they are on thin ice well before they are being called into HR to have their employment terminated.