Should Employees Tape Record Conversations To Gather Evidence?
Feb 20, 2015
If you ever want to see an employer's attorney head explode, all you have to do is observe that attorney's reaction when he/she learns that an ex-employee plaintiff has taped conversations in the workplace. This is especially true when the employer's decision-makers have testified in depositions to a completely false explanation of why the employee was fired/demoted etc. and the tape recording completely contradicts that testimony. I have been involved in trying two cases where my fired employee client alleged an illegal discriminatory firing and tape recorded conversations in the workplace prior to the firing. Both cases captured decision-makers saying exactly what my clients alleged and the jury ultimately found in favor of my clients.
So, does this mean that an employee should tape record conversations to prove illegal discrimination or illegal retaliation? This is a tricky issue. First, if one tape records telephone conversations where the person recording is on the call, it may be illegal in certain states like California or Pennsylvania if all the participants don't give their permission to have the call recorded. These states are known as two party consent states. In New Jersey, most of the other states and under federal law, only one participant on the telephone call need give consent for the call to be legally recorded and that one participant can be the person who records the call. For a state by state guide where calls can be recorded by one party consent as opposed to two or all party consent go to http://www.rcfp.org/reporters-recording-guide/state-state-guide. What is illegal in all circumstances is where a person is recording a telephone call without participating on the call--i.e., secretly wiretapping the call.
The next tricky issue is where the employer has a written policy in place that forbids tape recording in the workplace, whether it being face to face recording or recording telephone calls. Can the employer fire an employee for tape recording conversations without the employer's permission? That answer is not clear for several reasons. On the one hand, with exception of the state of Montana, employers can fire an employee for any reason or no reason as long as it is not for an illegal reason. So, if the employee violates an employer's rules or policies, the employer can legally fire the employee who tapes without permission. But what happens, for example, if the employee is being sexually harassed and tape records the conversations or incidents to prove her allegation, can the employer fire her? New Jersey's courts have not directly addressed that issue but prior decisions in slightly different contexts have suggested that under certain circumstances, the employer would be liable for illegal retaliation for firing an employee who is gathering evidence to prove their discrimination, harassment or retaliation claim. Federal appeals courts in New York and Philadelphia have ruled that where the employee tape recorded conversations to gather information to prove their employment claims, the tape recordings may be admissible and cannot be used against the employee to cut off the loss of wages at the time that the employer learns of the tape recordings.
Finally, lawyers who represent employees differ how tape recording workplace conversations fare before a jury. My two experiences have been positive but other lawyers have had negative results. I think it depends on the case, the personalities of the people involved and the surrounding circumstances.
Thus, if you are thinking of tape recording conversations in the workplace because you are suffering from harrassing, discriminatory and/or retaliatory
conduct, you should consult an employment lawyer before doing so. Our firm can certainly help.
Signs of a Hostile Work Environment
21 Dec, 2021
You deserve to thrive in your career. You work hard, you care about contributing to teamwork and your workplace culture, and you probably never expected to deal with a hostile work environment in return. Unfortunately, many Americans deal with just this problem. Under certain circumstances, workplace harassment may constitute a hostile work environment , and our attorneys may be able to help you pursue justice. If the following behavior is pervasive/severe, interfering with your work, and your employer knows about and has done nothing to stop it, then you may be in a hostile work environment: Unwanted touching Threats Assault Interfering with someone’s work Intimidation Slurs Jokes Mockery Ridicule Sexually suggestive comments, language, pictures, or videos These acts amount to discrimination against a legally protected group of people. The behavior is based on protected parts of a person’s identity, such as skin color, religion, sex, sexual orientation, disability, national origin, marital status, gender identity, and more. A hostile work environment is more pervasive and persistent than one isolated incident in which someone said something offensive to you. The all-encompassing and relentless nature of a hostile work environment can eventually completely wear you down emotionally, mentally, and financially. The workplace may feel like an abusive, intimidating place to be because the harassment is ever-present. Employers have a responsibility to respond to and address complaints related to harassment and a hostile work environment. This obligation is legally binding. An employer who fails to investigate and take action to stop workplace harassment may be held accountable by our experienced employment attorneys and may ultimately have to pay damages to the victim of the hostile work environment. What To Do About It If you believe you are the victim of a hostile work environment, please call the experienced Florham Park employment attorneys at Green Savits at (973) 965-8571. We will listen to all you have to say about what you are encountering at work, and then we can provide our recommendations and suggestions for what to do next. Our employment attorneys have lengthy experience in all of the case law, state and municipal laws, as well as federal laws that may affect your situation.
What Are Forms of Sexual Harassment in the Workplace?
08 Sep, 2021
In New Jersey, workplace sexual harassment is a type of illegal harassment. Illegal discrimination and retaliation must be for a prohibited reason (gender, race, sexual orientation, age, etc). Sexual harassment is harassment based on your gender.
What to Do If You Experience Sexual Harassment at Work
01 Jun, 2021
Workplace sexual harassment is a serious offense that should not be taken lightly. Whether a co-worker makes unwanted physical advances towards you or a supervisor threatens to withhold pay or promotion without sexual contact, you should report the harassment as soon as possible.
What is a Constructive Discharge?
23 Feb, 2021
A constructive discharge is when an employee quits their job due to conditions that would make any reasonable employee leave. The law treats a constructive discharge the same way as being fired, which means you may qualify for unemployment benefits, severance pay, continued health insurance coverage, and more.