Omarosa Says She Recorded Donald Trump, But is it Legal to Secretly Record at Work?
Omarosa Manigault-Newman, former communications director for the White House Office of Public Liaison, made headlines when she claimed she secretly recorded Donald Trump. However, one thing many people are wondering is if she broke any laws by making a tape without obtaining consent. Is it legal for an employee to make a secret recording at work?
The Cheat Sheet spoke with Eric M. Sarver, an employment law attorney and founding member of The Law Offices of Eric M. Sarver, to get some answers. Here’s what he had to say.
The Cheat Sheet: Is it legal to secretly record someone at work?
It may be legal to secretly record “someone”— which can include a co-worker or even a manager, supervisor, or the head of the company (or non-profit or government entity)—depending upon three factors:
- Geography. In most states, if you’re a participant in the conversation, then it is legal to secretly record another party to the conversation. However, it is not legal to record the conversations of people around you at work when you are not a participant, and where there is an expectation of privacy. For example, if you hide a tape recorder in a private, closed-door meeting of two co-workers speaking in confidence, that might be a violation of federal or state laws, including wiretapping if there are phone calls involved that are being recorded surreptitiously, where you are not a party. If you use your iPhone and you unlawfully video record and audio record others in a conversation that you are not privy to, then you may run afoul of your state’s laws.
- Workplace privacy: Because there is no expectation of privacy in public–such as a lobby, stairwell, conference room, or office with the door open, recording conversations in a public area is almost always legal, even if you are not a party. The underlying reason is that the people speaking do not have a claim for a violation of privacy, as there is no reasonable expectation that what one says at a cafeteria table or by the water cooler will remain private.
- Motivation/reason for recording: If you are recording a conversation to document illegal discrimination or harassment, the courts are split on the legality of this issue. However, the Equal Employment Opportunity Commission (EEOC) considers such recordings (documenting illegal harassment or discrimination) to be “protected activity.” Therefore, if you’re fired for engaging in that protected activity, you may have a claim against your employer for unlawful retaliation under federal and state anti-discrimination laws. Depending on the state in which you work, your employer may be able to fire you for secretly recording.
CS: What are the rules if you’re being harassed by a boss or co-worker?
ES: There is a split in the courts on whether or not a recording that would otherwise be illegal— such as secretly recording your boss or co-worker in a state that requires two-party/all parties to consent—would be deemed protected activity and therefore legal. Thus, what might otherwise be deemed an unlawful recording could be upheld as legally valid.
Another good example of how the motivation for your recording might change the legality of the action would be if an employee were to secretly record their employer to demonstrate unlawful and publicly harmful activity by the latter. Suppose employer and employee are in a state that requires consent of both parties and are speaking in private (while secretly recording) for purposes of proving that the company is dumping hazardous wastes or otherwise harming the public. The courts might find such a recording to be “protected activity,” and may uphold such recording as legally valid.
CS: How could secretly recording at work create complications for an employee?
ES: Even if you can claim that your recording is not illegal (not a crime or not violating any penal laws), you may still be in violation of an internal company policy that may preclude you from surreptitiously recording co-workers or your employer without their consent. In some cases, an employee recording their harasser to prove discrimination may backfire, because the employer might find out you recorded them and cite your violation of their internal company policy against secret recordings as their “legitimate/ non-discriminatory business reason” for firing you. You could likely counter that argument by claiming that the termination was a pretext for retaliation against you for standing up against, or trying to form a case for, an unlawful discrimination claim.
CS: What are the consequences of recording at work against someone’s wishes?
ES: This depends upon the state you’re in (a one-party consent or a two-party consent state), and what your objective is (documenting harassment/unlawful discrimination, compared to gathering gossip or “dirt” on a colleague).
- Legal consequences: If you are recording someone at work against their wishes in a state like California, which requires two-party consent, you might be violating their penal code. Recording a phone call for example might violate California’s state wire-tapping laws. However, if you are in New York, recording your boss at work, you would likely be free from legal consequences (such as a misdemeanor charge). Keep in mind as well that if you work for a governmental agency where classified information is being exchanged with you, and you record said information without the consent of the disclosing party, then you might be in violation of federal law.
- Other consequences: As noted, if your company has a strict policy against recording others without their consent at work, and said policy lays out potential consequences such as suspension or termination, then you may be held accountable to said policy, and could be terminated.
CS: Anything to add?
ES: In an age of technology where it is quite easy to record co-workers, managers, or people in positions of authority who are acting abusively, it is tempting (yet misguided) to think that, as long as you are following the one-party vs. two-party consent laws of your state, you are free and clear from any consequences of disclosing such recordings, or using them for some purpose. However, such may not be the case. It would be wise to consult with counsel—be it an employment law attorney or criminal defense attorney—to find out what factors may be at play, before you make said recording public.
Eric Sarver, Esq. is an employment law and business law attorney (management side, for small- to mid-sized businesses), practicing law for nearly 20 years. The firm’s practice areas include defending employers from employee lawsuits, defense against Department of Labor audits and investigations, drafting employment contracts and employee handbooks, and counseling businesses on compliance with federal and state labor laws. Eric Sarver, Esq. is admitted to practice law in the state of New York, and in the federal courts, Eastern and Southern Districts of New York. For questions involving an employment law or business law matter, you can contact Eric M. Sarver, Esq. at 917–930–8684 or firstname.lastname@example.org
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