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Should I Secretly Record Workplace Harassment Incidents?

Should I Secretly Record Workplace Harassment Incidents?

July 20, 2020 | sexual harassment

Generally, a picture, or a recording or video, is worth a thousand words.

That being said, surreptitious recordings sometimes cause much more trouble than they prevent.

This issue comes up a lot. Sadly, over 80 percent of women, and a sizeable percentage of men, have experienced workplace sexual harassment.

And, claimants have the burden of proof to establish unlawful harassment.

The stakes are high. Compensation in a sexual harassment action usually includes money for economic losses, such as lost wages, and noneconomic losses, such as pain and suffering.

Secret Recordings and the Types of Sexual Harassment

Unlawful retaliation is the most common type of sexual harassment charge.

If employees take protected actions, it is illegal to take adverse action.

In this context, protected activity includes reporting harassment, serving as a witness in an investigation, and encouraging others to report harassment.

Adverse action could be anything from sidelining to termination.

Recording such incidents usually adds little to a sexual harassment case. The adverse action itself is a matter of record.

And, to establish a prima facie claim, a New York sexual harassment lawyer need only show temporal proximity (e.g. protected activity in November and adverse action in December).

Quid pro quo exchanges are unfortunately quite common as well. Frequently, the actor already has a poor reputation in the office. Sometimes, in fact, the victim has been the subject of quid pro quo harassment.

Recording these incidents might be a good idea.

A recording prevents these matters from becoming a “he said, she said” exchange which a jury could resolve in either direction.

But before you cue up your smartphone’s recording feature, be sure you keep reading.

A hostile environment is an atmosphere which is so toxic, people are unable to effectively do their jobs. Examples include offensive computer wallpaper, tasteless jokes, demeaning comments, and offensive music.

Once again, a recording might be effective. But it’s important to be aware of all the pros and cons.

Wiretapping/Recording Laws and Rules

In terms of state law, most jurisdictions, including New York, are single-party states.

Only one person must give permission to record a conversation via video, audio, or any other method (i.e. “I give myself permission to record this conversation”). The other party’s knowledge or consent is not required.

Some jurisdictions, including Pennsylvania, are two-party states.

Both parties must affirmatively give consent. Those “this call may be recorded for quality purposes” disclaimers are highly misleading but legally sufficient.

Note that, even in single-party states, at least one party must consent. So, eavesdropping is almost always illegal.

The federal wiretapping law sometimes comes into play as well. However, 18 U.S.C. § 2511 is rather subjective. It only applies if the other party had a reasonable expectation of privacy. That could mean almost anything.

Finally, many employers have rules against secret recordings.

Generally, these recordings are very bad for morale. Workers do not want managers hacking their webcams, and managers do not want workers recording their conversations.

Handbook rules normally trump any state or federal laws. If the handbook says it’s wrong, it’s wrong.

Effect of Surreptitious Recording

Many recordings are not the “smoking guns” that claimants believe they are. In fact, many times, the opposite is true.

For example, if the other person asks, “are you recording this” and you say “no” or give an evasive response, your credibility suffers. If you are on tape making a false statement, anything else you claim is suspect.

The same thing applies to edited video or audio.

Tech-savvy jurors are not stupid. They can tell when audio or video footage has been altered.

You might have edited the recording for quality purposes, but many jurors are not very trusting.

Other documents, such as screenshots or copies of emails, are often much more compelling.

And, they are legal to harvest. In fact, claimants have a legal duty to preserve any physical evidence which substantiates or undermines their claims.

Written and dated diaries are good as well.

Secretly recording workplace conversations might seem like a good idea.

But there are a number of ways this approach can backfire. For a free consultation with an experienced sexual harassment lawyer, contact Napoli Shkolnik PLLC.

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