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Tape recording office converations

By Daniel J. Burnick • Monday, August 1, 2011

In Alabama, it is permissible for one party to a conversation to tape record the conversation without the consent of other participants.  With the advancement of recording technology, such as recording with smart phones, more and more individuals are surreptitiously recording conversations in the office.  David Koeppel recently published an article in Business Insider looking at how this may impact employment related claims.  In one instance, a supervisor was tape recorded telling the employee: "Those dreads in your hair make you look like a thug" and  "We’d love you to speak proper English, not the jive you speak in the office."  A six figure settlement was reached as a result of the supervisor’s comments.  In this day and age, Employers should assume that all conversations with employees are being recorded.  As a result, training should take place for all employees, especially those whose actions can be attributed to the employer, such as officers and front line supervisors.  Training should include not only what the employees can say, but for all employees, including supervisors, to report any inappropriate conduct immediately. 

Companies may want to consider implementing a policy prohibiting unauthorized recording on company property.  However, this may be a two edged sword:  if an employee is terminated for recording a conversation after an internal complaint or EEOC charge is filed, an argument could be made that it was done in retaliation.  Tape recordings are often the most accurate evidence as to what was said, and the manner in which it was said, when it comes to the trial of a case.  This too can cut both ways, being in favor of the employee or the employer.  Companies that secretly record audio or video may be viewed by a jury as being overly intrusive, and invading the privacy of their employees.  Before a company records, it should notify the workforce and obtain the consent of all the employees.

Practice pointer.  Once again, training of the entire workforce, and it’s proper documentation, is important.  Unless there are allegations of tampering, audio and/or video tape recordings leave little doubt as to what was said or done, and the manner in which it happened.  Supervisors saying the wrong thing, or hearing the wrong thing and not taking the appropriate action, can lead to an expensive lawsuit with bad publicity. 

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