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Big Verdict Underscores Danger of Recording Devices in the Workplace

With the proliferation of smartphones, most employees have a recording device in their pockets. How do you protect your business against the possibility of employees using these devices to gather damaging evidence against you?

September 5, 2013

A couple of years ago, I asked the following question: Are your employees recording you? In that post, I discussed an ABC News story, which noted that employees are using their smartphones to digitally record workplace events to gather evidence for future discrimination lawsuits.

Yesterday, news broke of a $280,000 verdict against a New York non-profit in a racial harassment case, in which the African-American plaintiff claimed that her boss, also African-American, called her a n****r. Her evidence? A four-minute audio recording the employee surreptitiously made on her iPhone. (If you’re curious, you can listen to some of audio on CNN.com).

With the proliferation of iPhones and Androids, most employees have a high-tech, high-clarity recording device in their pockets. How do you protect your business against the possibility of employees using these devices to gather damaging evidence against you?

  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? Unless, of course, the NLRB gets its way and renders these policies per se illegal.

  2. If the legality of workplace recording bans is up in the air, then you need to train your managers and supervisors to understand and 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. You can also follow Jon on Twitter @jonhyman.