Monday, August 13, 2018

Protecting your business from an "Omarosa": workplace recordings and the law

Omarosa Manigault-Newman, formerly a contestant on Donald Trump's The Apprentice and also formerly an employee in President Trump's White House, secretly recorded Chief of Staff John Kelly firing her.

In 38 states plus the District of Columbia, this surreptitious recording would be perfectly legal.

Wiretap laws come in two flavors: one-party consent and two-party consent. The former means that only one party to a conversation needs to consent for the conversation lawfully to be recorded. The latter means that everyone must consent. Thus, in a one-party consent state, as long as the person making the secret recording is part of the conversation being recorded, no wiretap law has been violated.

Yet, with the proliferation of iPhones and other smart devices, most employees have a high-tech, high-clarity recording device in their pockets. Thus, you should assume that every workplace conversation you are having with an employee is being recorded.

How do you protect your business against the possibility of employees using these devices to gather 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? While the legality of these policies was uncertain for several years, the NLRB recently clarified that "no-recording rules" are presumed legal under the National Labor Relations Act.

  2. Regardless of the legality of no-recording rules, and whether you are in a one-party or two-party consent state, 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. 

Or, you could just install the Cone of Silence for all workplace conversations. Or not…

* Photo by Simone Acquaroli on Unsplash