From Michael Cohen’s audio of discussions about hush-money payments with his former client Donald Trump to ex-White House aide Omarosa Manigault Newman’s documentation of her firing by Chief of Staff John Kelly, secret recordings have been making national headlines.
With smartphones in nearly everyone’s palms, it has become particularly easy to record conversations. But in a professional setting, where does an employer draw the line? Are they even allowed to?
Experts say yes, they are, but specificity is key.
Last year, a case brought against Whole Foods prompted the National Labor Relations Board to rule (and the Second Circuit to affirm) that blanket policies that disallow recording in the workplace were against Section 7 of the National Labor Relations Act, which guarantees employees the right to engage in activities for the purpose of collective bargaining or other mutual protection.
Now, any workplace policy found to chill an employee’s Section 7 rights may be found in violation of the NLRA, so any employer that wishes to implement a no-recording policy needs to follow strict guidelines on how it’s written.
“The policy should be narrowly tailored and identify the areas, activities [and] times when employees are prohibited from recording – for example, when confidential and proprietary information is being discussed,” said Melissa Salimbene, commercial litigator at Chiesa Shahinian & Giantomasi PC in West Orange.
“The employer should also provide the business reasons for the policy and expressly state therein that the policy is not intended to infringe on any employee’s right to engage in protected concerted activity. Of course, this disclaimer alone is not sufficient if the policy is overly broad,” Salimbene said.
Additionally, any policy must be consistently enforced, she added.
These policies, according to Steven Adler, co-chair of Mandelbaum Salsburg PC’s labor and employment law group, were created to protect trade secrets and information about what companies were working on.
“I still think that trumps most arguments to the contrary,” Adler said. “It’s still important to have a policy.”
If a business has a policy in place that’s compliant with the NLRA and an employer finds out that an employee has made secret recordings, the employer is not powerless to stop them.
“If the employee’s conduct is in violation of the company’s narrowly tailored policy against recording, the company can take disciplinary action against the employee,” said Keya Denner, member of the labor and employment group at Norris McLaughlin & Marcus PA in Bridgewater. “Such action should be consistent and follow the company’s normal disciplinary steps.”
But if an employee has evidence of employer wrongdoing, although disciplinary steps are within the employer’s bounds – including termination, if an at-will employee – and no matter how the employee came upon the evidence, recordings can still be used in a civil suit against the company.
“People are not aware that if you improperly or illegally obtain info, that you can still use it in a civil case,” Adler said. “Because of search-and-seizure laws in criminal cases, if something is done to improperly gather evidence, it won’t be able to be used. But that’s not how civil cases work.”
So what should an employer do if they find their own voice saying things that shouldn’t be said flowing out of that voice recorder?
If an employee brings it to their attention without filing a suit first, the company should investigate the improper conduct and take remedial action when necessary to mitigate risk and lessen the possibility of a suit.
“Companies have a duty to act when confronted with improper conduct,” said Denner. “If the company investigates the conduct that was recorded and takes remedial action, this will often act as an effective defense if an employee brings a lawsuit.”
Salimbene uses the example of sexual harassment. If an employer is caught on a highly incriminating recording engaging in quid pro quo sexual harassment, this will likely be used to settle the case more quickly and for a higher amount than if no recording existed.
“Even if the recording ends up not being admissible in court, there is always the risk of that recording being made public, resulting in significant harm to the employer’s brand and reputation,” she said.
Adler once represented the No. 3 executive at a very large brokerage firm in Manhattan. When his client was fired and negotiating severance, he threatened to release recordings he had of the chairman and CEO making potentially damaging admissions about how the brokerage firm was operating.
“There’s supposed to be a Chinese wall between the stockbrokers and the analysts who review varying industries, and the CEO on tape basically said, ‘we don’t give a crap about that, we’re gonna operate the way we want to operate,’” Adler said. “When the brokerage firm found out [during mediation] that we had tape recordings, we were able to get the case settled that day for a lot more money that we would ever get if we didn’t have any tapes.”
In some cases, employees believe they have smoking gun recordings, when in reality their recordings don’t help their case at all.
About 10 years ago, when Adler was representing a Berkshire Hathaway company, a disgruntled employee brought a sexual harassment lawsuit against her employer.
“She was claiming she wasn’t being promoted because she was a woman,” Adler said. “She would apply for [open jobs], go to the interview and secretly record them. She had 10 hours of tape recordings. But in that case, her interviewers didn’t do anything wrong.”
The simple remedy to all of this, the attorneys advise, is not to say anything bad in the first place. In the age of #MeToo, employees and employers must be reminded that things can always be recorded.
“Make sure this is addressed when you provide anti-harassment training – employees must be educated that just as things stated in email and text messages may result in a harassment lawsuit, so may things that are said verbally and recorded,” Salimbene said. “Employers and employees must be constantly reminded to act appropriately in the workplace.”