White House Recordings Put Focus on Workplace Policies, But Not Everyone's a Fan
"Assuming that the tape recording was done legally, it could very well be considered a protected activity, depending on the basis," said Jed Marcus of Bressler, Amery & Ross.
August 24, 2018 at 12:16 PM
5 minute read
Revelations about former presidential aide Omarosa Manigault Newman's secret recordings of White House meetings have raised question on whether employers should take measures to prevent such tactics, and opinions on the matter differ.
Newman, while promoting a book about her tenure in President Donald Trump's Office of Public Liaison, claimed to have made as many as 200 recordings of White House meetings, including one in which Trump allegedly used a racial epithet.
Some lawyers think news coverage of Newman's acts will help drive employers to adopt policies barring surreptitious recordings in the workplace, but others question the value of such edicts.
Interest in such policies is said to be stronger in states such as New Jersey and New York, which allow recording of conversations with the consent of only one party.
“What we're seeing with the White House, while distinct on many different levels from what your typical employee might do in a regular private employment situation, is illuminating,” said Benjamin Widener, chairman of the employment law group at Stark & Stark in Princeton.
“With advancements in technology, it is easier for employees to record conversations in the workplace. The best practice is for employers in one-party consent states like New Jersey to have policies that restrict or prohibit employees from recording any conversations.”
The need for such policies may seem less pressing in other states, such as Pennsylvania and California, which require two-party consent to record a conversation, Widener added.
In employment litigation, secretly recorded workplace conversations sometimes surface, although not frequently, according to Widener. Even without a written policy, making secret recordings of meetings “would be taboo and would be frowned upon,” and might result in disciplinary action against an at-will employee, up to termination, he said.
A policy against making secret recordings in the workplace must be carefully drafted and should be careful not to violate the National Labor Relations Act, Widener noted.
Donald Scarinci of Scarinci & Hollenbeck in Lyndhurst wrote on Observer.com that, “Given that so many cases come down to 'he said/she said,' a taped recording containing a discriminatory or harassing statement can be damning. Even if the recordings are not admissible in court, employees may threaten to release the recordings to the media, the Equal Employment Opportunity Commission (EEOC) or their labor union in order to pressure an employer to offer a favorable settlement.”
Jed Marcus, chairman of the labor and employment practice group at Bressler, Amery & Ross in Florham Park, said that in the context of an employment dispute, recording co-workers' conversations sometimes works in the plaintiff's favor. But he pointed to a case where a worker left a recording device in a room, which is considered wiretapping and is illegal. And even if a recording is made in compliance with the law, jurors may regard the practice as sneaky, Marcus said.
Marcus recognized reasons for employers to forbid recording of conversations in the workplace unrelated to getting the upper hand in possibly litigation, such as the need to protect trade secrets, the desire to prevent disruption or to protect employee morale.
Still, Marcus doesn't see strong interest in anti-recording policies among employers, he said, questioning whether such policies are truly effective.
“The bottom line is, just like Omarosa, if someone really wants to do it, they're going to do it,” he said.
Marcus said a ban on recordings in the workplace might not be legally upheld if the reason for a recording is to document discriminatory acts by bosses. He said the New Jersey Supreme Court's 2010 ruling in Quinlan v. Curtiss-Wright, which held that a plaintiff was justified in removing confidential personnel files from the company's premises because they were used to prove her discrimination claim, might protect an employee's decision to make recordings even in the face of a policy barring such actions.
“Assuming that the tape recording was done legally, it could very well be considered a protected activity, depending on the basis,” Marcus said.
Plaintiff-side employment lawyer Leslie Farber, a Montclair solo, said she has had two cases where her clients presented secretly made recordings from the workplace. In one, her client received a settlement, and the other case is still pending. Neither of those cases involved an employer with a policy banning secret recordings in the workplace, she said.
Farber likens such recordings to the dashboard cameras and body cameras that are becoming commonplace in police departments. She said policies against such recordings are “not a good thing,” adding that “If they try to bar the employee from recording anything, it doesn't help the employer in a legitimate way.”
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