Should Employees Tape Record Conversations To Gather Evidence?

Employment Attorneys Serving Northern and Central New Jersey

If you ever want to see an employer's attorney head explode, all you have to do is observe that attorney's reaction when he/she learns that an ex-employee plaintiff has taped conversations in the workplace.  This is especially true when the employer's decision-makers have testified in depositions to a completely false explanation of why the employee was fired/demoted etc. and the tape recording completely contradicts that testimony.  I have been involved in trying two cases where my fired employee client alleged an illegal discriminatory firing and tape recorded conversations in the workplace prior to the firing.  Both cases captured decision-makers saying exactly what my clients alleged and the jury ultimately found in favor of my clients.

So, does this mean that an employee should tape record conversations to prove illegal discrimination or illegal retaliation?  This is a tricky issue.  First, if one tape records telephone conversations where the person recording is on the call, it may be illegal in certain states like California or Pennsylvania if all the participants don't give their permission to have the call recorded. These states are known as two party consent states. In New Jersey, most of the other states and under federal law, only one participant on the telephone call need give consent for the call to be legally recorded and that one participant can be the person who records the call.  For a state by state guide where calls can be recorded by one party consent as opposed to two or all party consent go to http://www.rcfp.org/reporters-recording-guide/state-state-guide. What is illegal in all circumstances is where a person is recording a telephone call without participating on the call--i.e., secretly wiretapping the call.

The next tricky issue is where the employer has a written policy in place that forbids tape recording in the workplace, whether it being face to face recording or recording telephone calls.  Can the employer fire an employee for tape recording conversations without the employer's permission?  That answer is not clear for several reasons. On the one hand, with exception of the state of Montana, employers can fire an employee for any reason or no reason as long as it is not for an illegal reason.  So, if the employee violates an employer's rules or policies, the employer can legally fire the employee who tapes without permission.  But what happens, for example, if the employee is being sexually harassed and tape records the conversations or incidents to prove her allegation, can the employer fire her?  New Jersey's courts have not directly addressed that issue but prior decisions in slightly different contexts have suggested that under certain circumstances, the employer would be liable for illegal retaliation for firing an employee who is gathering evidence to prove their discrimination, harassment or retaliation claim.  Federal appeals courts in New York and Philadelphia have ruled that where the employee tape recorded conversations to gather information to prove their employment claims, the tape recordings may be admissible and cannot be used against the employee to cut off the loss of wages at the time that the employer learns of the tape recordings.

Finally, lawyers who represent employees differ how tape recording workplace conversations fare before a jury.  My two experiences have been positive but other lawyers have had negative results.  I think it depends on the case, the personalities of the people involved and the surrounding circumstances.

Thus, if you are thinking of tape recording conversations in the workplace because you are suffering from harrassing, discriminatory and/or retaliatory conduct, you should consult an employment lawyer before doing so.  Our firm can certainly help.