Editor’s Note: This story was originally published on August 14, 2018.
Former White House aide Omarosa Manigault Newman claimed she recorded her firing by White House chief of staff John Kelly and a subsequent call with President Donald Trump.
Executive Brief
She’s not the first person to record workplace conversations.
But recording someone without their consent isn’t always legal. And there are other reasons why making a secret recording might not be such a good idea.
Recording in the office can make sense: you want a record for meeting minutes, you need to review details later or you may even want evidence of harassment or discrimination.
But make sure you’re familiar with local laws, which differ by state, first.
Most states are considered one-party consent states, which means only one person in a conversation needs to be aware of the recording. So if you decide you want to record a meeting with your boss, you are legally cleared to do that.
But some states are all-party consent states, including California and Florida, that require all members of a conversation to give permission.
“If you want to be 100% sure you aren’t breaking the law, you stick the recording device on top of the desk, hit record and ask: ‘do you mind if I tape this?’” said Donna Ballman, an employee-side employment attorney in Florida.
No matter what state you live in, you cannot record conversations that you aren’t participating in.
But just because you can legally record a conversation, doesn’t mean you should. Some companies have policies against recording in the workplace, which means you can get fired even if you get the legally required consent.
If you have a legal recording that proves you were wrongfully fired and a court rules in your favor, the company can then turn around and try to fire you for the recording if it’s banned in the policy handbook, explained Kristin Alden, an employment attorney in Washington, DC.
“It’s like cutting off your nose to spite your face,” said Alden. “You can do yourself a disservice if you record when you shouldn’t be recording.”
Having a recording of alleged illegal behavior in the workplace can help in workplace lawsuits, especially in cases of sexual harassment and discrimination.
“In most of these situations, it’s your word against theirs, and the accuser is almost never believed. It is only when there is proof,” said Ballman.
Ballman said she’s heard of a worker calling a friend and having her on the phone to listen in on a conversation at work when she saw her harasser coming toward her office.
“Having a witness to the conversation is certainly helpful.”
Generally speaking, there is no expectation of privacy in the workplace (but there are exceptions).
Employers can access information and data on any work-issued phones and computers. Even your desk can be searched.
“All text and phone calls are fair game for the employer if it is on their phone. Your computer, most workplaces have written policies or even notices that pop up on your screen saying you have no expectation of privacy,” said Alden.
