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Secretly recording the boss: clever plaintiff or bad employee?

October 20th, 2015  |  Lorene Park

By Lorene D. Park, J.D.

Making secret recordings at work to help prove that supervisors or coworkers were harassing or discriminating against an employee may seem like a clever way to avoid a he-said-she-said standoff in court, but plaintiffs who rely on such recordings to prove unlawful activity sometimes find that the tactic backfires. In the end, it is often a jury that decides whether the individual doing the recording was a clever plaintiff or a bad employee.

A “double-edged sword.” Secretly recording conversations with supervisors is a “double-edged sword,” explained the Tenth Circuit recently to an unsuccessful plaintiff, who failed to convince a jury that Spirit AeroSystems discriminated based on age when it did not hire her. Spirit had acquired the Boeing facility where she worked and it hired 85 percent of Boeing employees—but not the plaintiff, who was not recommended by her managers despite positive performance reviews. To help prove her discrimination case under the ADEA, the plaintiff used a recording she had secretly made at a meeting with her supervisor and a higher-level manager who made the recommendations to Spirit. The manager had asked if the plaintiff was “thinking of retirement” and whether she was “old enough.”

The plaintiff’s plan to use the secret recording as evidence of discrimination backfired. In what the appeals court called an “interesting turn of events,” Spirit used the recording to prove that she lacked teamwork, which was the proffered reason for why she was not hired. Apparently, the jury was swayed by Spirit’s argument. Refusing to disturb the verdict, the Tenth Circuit found no error in admitting the evidence and further concluded that any error was harmless because the plaintiff was allowed to explain why she made the recordings and to tell the jury that she had done nothing illegal (Housely v. Spirit AeroSystems, Inc.).

Taking the bitter with the sweet. As the Tenth Circuit aptly pointed out, secretly recording coworkers or supervisors may or may not work as intended in a subsequent suit, and employees often have to “take the bitter with the sweet.” Recordings seem to work best when an employee’s own behavior is not at issue. For example, the Seventh Circuit recently found that substantial evidence supported the NLRB’s conclusion that a car dealership and its corporate owner, in meetings that were secretly recorded by a dealership employee, addressed efforts to unionize by threatening workers with demotion and blacklisting, implying that unionization efforts would be futile and workers who did not support the union would receive wage increases. The recording thus helped the employees prove a violation of the NLRA (AutoNation, Inc. v. NLRB).

In another case, a Costco employee’s behavior was squarely at issue, because he was fired for secretly taping interactions with coworkers and customers. Filing suit for retaliatory discharge, he claimed the recordings constituted protected investigative activity. A federal court in Connecticut declined to decide if an employee is ever privileged to secretly record at work, but here, there was certainly no privilege. When Costco confronted the employee, he did not claim he made the recordings as evidence for his ADA suit; he gave no justification at all. Thus, it was not retaliatory for Costco to fire him under its policy against such recordings. Moreover, the scope of his recordings exceeded the purpose of his suit—recordings of customers had no possible relevance and though he recorded all interactions with coworkers, he did not claim he was harassed by all coworkers. Plus, his recordings of phone conversations violated criminal law, and some could be actionable as violations of privacy (Marini v. Costco Wholesale Corp.).

From the employer’s perspective. Some employers have zero-tolerance policies precluding the use (or even the presence) of recording devices in the workplace. This could come in handy if, during discovery in an employee’s lawsuit, it comes to light that the employee is made secret recordings. The employer could use it as after-acquired evidence of a terminable offense that could lead to a reduction in damages for lost wages. Possibly, as in the Spirit AeroSystems case, the employer could use the fact that the employee made secret recordings as evidence that the employee exhibited the trait for which he or she was fired—such as not being a team player.

Note, however, that in cases where an employer has fired an employee for violating such a policy, employers may face their own double-edged sword in relying on the policy violation as a legitimate reason for the termination. For one thing, the contents of the recording could suggest ulterior motives. For example, if the recording captures a supervisor harassing an employee or discussing unlawful reasons for the termination, the comments could suggest the termination over the policy violation was pretextual.

More importantly, employers must ensure that a policy against recording is enforced consistently. In one case, the Sixth Circuit found that a “zero tolerance” policy prohibiting cameras and recording devices on plant premises was a legitimate reason for refusing to rehire a former employee who the employer learned made secret recordings of a supervisor. However, there were questions of fact on whether this reason was pretextual because other employees were not disciplined for using similar devices (Sharp v. Aker Plant Services Group, Inc.). Thus, as is often the case in employment law cases, an employer’s consistency is key.

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