The bank employee went into a performance review knowing it could be a disaster. But he was armed with a secret weapon: his BlackBerry. He used it to surreptitiously record the conversation with his boss.
“Those dreads in your hair make you look like a thug,” the boss said on the recording, according to Johnny C. Taylor, past chairman of the Society for Human Resource Management and now president of the Thurgood Marshall College Fund, which provides support for historically black colleges and universities. Taylor, who was called in to advise the company, says the boss also said: “We’d love you to speak proper English, not the jive you speak in the office.”
The employee’s lawyer threatened to release the recording to the local media, and rather than risk adverse publicity and a potential lawsuit, the Midwest-based bank (which Taylor declined to identify) agreed to a six-figure settlement and the employee’s swift departure, says Taylor.
Welcome to the brave new world of smartphone spies.
There are no national statistics on how frequently such secret recordings take place, but smartphones and other pocket-sized devices have given employees and employers a powerful tool to easily record playbacks of sensitive workplace conversations which are legal in some states and illegal in others. The recordings can be used in court or administrative hearings–or subject the parties involved to public criticism. Many cases involve disciplinary proceedings or union organising.
Katrina Patrick, a Houston lawyer who represents aggrieved employees, says that more than 50 per cent of the people who come to her office bring digital evidence. “I’m more surprised when someone comes into my office without digital evidence,” she says. She says some companies now require employees to sign statements that they are not recording performance evaluations and other sensitive conversations.
In 38 states there are “single-party” consent laws, where anyone with an iPhone can push a button and record without another’s consent. In the other 12 states, all parties are required to know if a recording is being made. A surreptitious recording in those states could be considered a crime and likely inadmissible in court.
Many lawyers recommend that their corporate clients implement a strict no unauthorised audio or videotaping policy, which they say could dissuade employees from recording conversations and serve as grounds for dismissal if they do.
There already have been legal ramifications for companies that don’t have unauthorised recording policies. In February, the National labour Relations Board ruled in favour of an employee who was fired after secretly recording a conversation with a manager at Stephens Media in Hawaii, publisher of the Hawaii Tribune-Herald. Hawaii is a single-party consent state, and Stephens didn’t have an unauthorised recording policy when the incident took place.
The NLRB ruled that management had violated the National labour Relations Act by questioning employees about union activity. The employer was ordered to reinstate the employee with back pay plus interest, and benefits he would have been eligible to receive if hadn’t been discharged. Stephens put a no-recording policy in place after the employee’s dismissal.
Dozens of employees at the Boathouse restaurant in New York’s Central Park last year secretly recorded workplace conversations with supervisors when they complained about their pay and working conditions. Sixteen employees were fired in retaliation, according to John Turchiano, a union delegate for the New York Hotel Trade Council, Local 6, who says the recorded conversations are now in the hands of the NRLB and an unfair labour-practice charge has been filed. A spokesman for the Boathouse declined to comment.
Joe Bontke, outreach manager at the Houston office of the Equal Employment Opportunity Commission, says he’s been receiving more calls from employers worried about recording devices in the workplace in the last 18 months. “Make it positive and proactive,” he advises employers about sensitive interviews and meetings. “Ask things that are only a business necessity. Don’t say anything that risks potential [charges of] discrimination.” He says about a third of potential complainants come with some sort of evidence, including cell phone recordings, emails and Facebook postings. “Anyone can be James Bond with a cell phone in their pocket,” he says. “Just assume you’re being recorded.”
Many employees are resigned to company surveillance cameras and computer monitoring. In a 2007 survey by the American Management Association and the ePolicy Institute, 48 per cent of employers said they used video monitoring to “counter theft, violence and sabotage.” About two thirds monitored Internet connections.
Tex McIver, a senior partner with Fisher and Phillips in Atlanta, which specialises in employment law, calls the potential damage from workplace recordings a wakeup call to management. He cautions employers against making their own recordings without employee consent and advises having a witness present during performance reviews or disciplinary hearings.
“It chills free speech,” he says about such recordings. “But if it’s a particularly ugly termination, the best way to protect an employer conducting a meeting is to tape it.’
Recording isn’t always foolproof. Not everything recorded with a smartphone provides incontrovertible evidence, says Nick Inzeo, director of field programs for the EEOC in Washington. Inzeo says that “depending on the device and individual abilities, not every recording is as audible as one might hope.”
Still, if employees want to get the goods on the boss—or vice versa—there’s now an app for that.
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