by: Kris Finlon
Getting called into a meeting with your supervisor, or with Human Resources, can be incredibly stressful, especially if you know or suspect that the purpose of the meeting will be a confrontation about your performance, or even a termination of your employment. In this new age of technology when many employees have smartphones with built-in recording capabilities, more and more employees are making recordings of these meetings. And it’s even easier now, when so many of us are working remotely and can use our devices to record Zoom meetings. Before you hit the “record” button on your phone, though, there are a few things you should consider.
Is it legal?
Recording a conversation without the knowledge of the other participants may result in criminal or civil penalties. The legality of surreptitiously recording conversations varies from state to state. Some states have “one party consent” rules, meaning that recording a conversation is permissible so long as at least one party to the conversation knows about and consents to the recording. Other states require the consent of all participants. If you are recording a conversation that’s happening over the phone (or, in our 2020 COVID-19 times, over Zoom or another conferencing platform) among participants sitting in different states, then the laws of those different states may apply. And if the communication is happening across state lines, then federal law will apply as well.
Is it a violation of my employer’s policy?
Even if it is legal in your state to surreptitiously record a conversation, it may be a violation of your employer’s policy. That means that it may create grounds for terminating your employment.
Why would you care about following company policy, though, if what you’re recording is the meeting where you’re getting fired? Well, the problem here is your possible legal claims against your employer. If your employer is firing you for an illegal reason, then you may have a legal claim. However, if it comes out during discovery in your court case that you recorded the conversation in violation of the company policy, that can create a defense for your employer because they can argue that they could have fired you anyway for making that recording, independent of any illegal motivations. So treating the employer’s policies cavalierly, even during your termination meeting, is likely to do you more harm than good.
Is it actually going to help me?
Even if you aren’t violating the law or any policies, or you get everyone’s consent to make the recording, the recording might not actually be helpful to you. If it’s just a matter of the employer not actually saying the bad things that you expected them to say, that’s probably not going to actually harm your case. However, an employee’s recording of a conversation might actually reveal the employee acting in a way that justifies their termination. If you know a conversation is being recorded, and you still lose your temper, or you spend the conversation being hostile and argumentative, or otherwise engaging in the behavior for which your employer says you’re being fired, you’ve probably just handed the employer’s lawyer her primary exhibit in defeating your legal claims. So if you do decide to record a conversation, make sure that you proceed very, very carefully with your own conduct in that conversation.
If it doesn’t help me, can I just erase it?
No. If you have created a recording of a conversation, it is likely to be discoverable evidence should you decide to pursue your claims. Destroying evidence may result in sanctions against you in the event that you do pursue a case.
In conclusion, you should proceed very carefully before you decide to record a meeting. It may be best to make that decision after consulting with legal counsel to discuss the advantages and pitfalls of making a recording, so that you can decide how to proceed.