In Jones v. St. Jude Medical Center (6th Cir. 11/8/12) the employee—fired for surreptitiously recording workplace conversations about her job performance—sought the protection of Title VII's anti-retaliation provision. She argued that because she made the recordings to gather evidence about discrimination, the act of recording was protected activity under Title VII. Because her employer fired her because of the recordings, she claimed retaliation.

The 6th Circuit concluded that the hospital fired Jones because she violated its policy against recording conversations in the workplace, and rejected her retaliation claim.

Importantly, the Court further concluded that Title VII's anti-retaliation provision does not protect the act of recording in and of itself:

Jones has not shown why she needed to violate the recording policy in order to oppose defendants' alleged discrimination. She might have taken notes of the conversations, obtained the same information through legal discovery, or simply asked her interlocutors for permission to record. Jones argues that her conduct was reasonable because the recordings were not illegal, did not breach confidential information, were not disruptive of business operations, and were not disseminated beyond the litigation. But none of this suggests that the recording policy was illegitimate or that it would have been futile to oppose the alleged discrimination in ways that did not violate the policy. In light of these considerations, we decline to hold that Jones' recordings were protected.

What can an employer learn from this case?

1. If you do not have a policy against employees recording conversations in the workplace, you might want to consider drafting one. You never know when an employee is going to try to smuggle a recording device into a termination or other meeting. The proliferation of smart phones has only made it easier for employees to make recordings, both audio and video. Why not address this issue head-on with a policy?
2. Your managers and supervisors should assume that everything they say is being recorded, if not electronically, then via a mental note that an employee can later jot down. You would be surprised how many plaintiffs keep copious, contemporaneous journals of the goings-on in the workplace. Managers and supervisors need to be vigilant in making sure that they do not say anything that could come back and bite your company in later litigation.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.