The risk for employers is that the cell phone recordings may be used as evidence in a later employment lawsuit. 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 media, Equal Employment Opportunity Commission or labor union in order to pressure the employer to offer a favorable settlement.
According to Joe Bontke, an outreach manager for the EEOC, approximately one third of potential complainants offer some form of digital evidence, including cell phone recordings, emails and social media posts. “Anyone can be James Bond with a cell phone in their pocket,” he told the The Fiscal Times. “Just assume you’re being recorded.”
To avoid potential liability, the best idea is to assume that everything you say may come back to haunt you. Employers may also want to consider adopting a policy that prohibits recording workplace conversations without the permission of all parties.
If you have any questions workplace recordings or would like to discuss the legal issues involved, please contact me, Fernando M. Pinguelo, or the Scarinci Hollenbeck attorney with whom you work.
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