Lady Lawyer Lessons*: Recording Regrets

On Behalf of | July 14, 2014 | Gender Discrimination, Harassment

A performance review.  An unexpected meeting called by Human Resources.  A conversation where you’ll be requesting a raise or a promotion.  A discussion where you report a colleague who has been saying inappropriate things.

It’s understandable why a smart employee – particularly in our technologically-dependent world – would think it was a great idea to make a recording of any of the above conversations.  It isn’t.

To be clear, it is a good idea to keep records of what goes on at work.  There are plenty of good ways to make those records.  Some favorite suggestions of mine include:

  • keep a file at home of anything related to performance feedback – good and bad – that includes photocopies of any review materials, disciplinary records or rewards that you receive from your boss or the company;
  • have a notebook you use only for your reflections on key conversations (which would include any of the ones discussed at the opening of this post) and make those detailed notes on the same day that the conversations occur; and
  • maintain a file or folder on your computer at work where you store copies of any emails or other documents that you believe will be relevant in future discussions about your performance, your pay or your development and promotional opportunities.

In a future post, I will talk in more detail about some of the above, but the focus today is on why recording conversations – via tape recorder, cell phone, or any other electronic recording device – is a TERRIBLE idea.

First, there are legal restrictions on when you are allowed to make a recording of others without their knowledge.  In other words, depending on the local, state and federal laws in play, you may be engaged in criminal activity if you record a conversation without everyone else’s approval.  Figuring out which rules apply can be tricky even for lawyers.  It only gets more complicated if some involved in the conversation are in different places and are speaking by a conference call or some other means.  While actual prosecutions for making this sort of recording are extremely rare (a notable exception being the prosecution in the Lewinsky scandal), there is no reason to risk it.

Second, most companies have rules that prohibit making recording of their employees.  So even if you won’t face possible criminal repercussions for making a recording, you still might face discipline from your employer.  What discipline your employer can impose will depend on how they have handled other similar violations of company policy in the past, but in some cases, an employer may treat a recording as a violation serious enough that termination might be the discipline that is used.  While you may be able to fight whether termination or other serious discipline is an appropriate and measured response based on how your company handles other policy violations, there is no need to get caught up in that stressful situation.

Even if you believe that you will need to have a lawyer help you with a lawsuit against your employer in the future, you do not need recordings of these conversations.  As I’ve already mentioned above, there are plenty of other good ways to document the information you need without exposing yourself to the potential problem.  Your own recollections of these conversations are a much better and safer source of evidence in any potential litigation.  Whether it is a performance review, a difficult conversation, or a conversation with Human Resources, making notes in your notebook immediately after the conversation (or certainly before you go to sleep that night) will help keep your memory fresh on all the details if you ever have to talk about it again.  Better yet, that approach typically doesn’t implicate any laws or employer policies (unless you’re a spy or otherwise handling state secrets, then maybe your situation is a little bit more complicated).

* Lady Lawyer Lessons is a monthly column where Kate K shares tips she wishes her clients knew before they came to her (or any other lawyer) for help or advice. As always, this is not intended to constitute legal advice or to create an attorney client relationship.  Instead, these are just some of Kate’s “rules of the employment road” that are often a good idea but may not apply in a particular situation.

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