In the age of the do-everything smartphone, it has become increasingly common that potential new clients come to us with recordings and videos related to their employment issue. But for every recording that's helpful, there's a recording that's quite the opposite. So, if you're having a problem at work, should you record your employer?
First and foremost, any recording is made at your own risk. Many employers now have anti-recording policies in their handbooks. Meaning that, if you get caught, you may get fired for violating that policy. Additionally, depending on where you live, this could be illegal. New York is a one-party consent state, meaning that you are (at least from a criminal law perspective) allowed to record conversations you are a party to. In California, however, both participants in the conversation must agree.
The “pro” of recording a complaint to your employer is, of course, documenting something that might otherwise be he said/she said. Often employees are not given written confirmation or documentation of a complaint to their boss or HR (which is a reason we encourage complaints to be confirmed in a writing or email by the employee). When it comes to documenting inappropriate conduct (as opposed to a complaint), your recording (or photo, or video) could end up being the only proof of the incident or the inappropriate comments. Aside from the risk of violating a potential employment policy, typically photographing something like vandalism, pornography in the workplace (yes, we have seen this) or a racial slur written on the wall would be a good thing.
The “cons” come when your own conduct in the recording will have a negative impact on you or a potential case. For example, you record an altercation but your behavior also is inappropriate or violent. Another example is saying too much, particularly in the context of making a complaint. Sometimes, in an effort to be conciliatory, the employee actually exonerates the employer in the conversation. (Think, “I know you're doing everything you can to deal with this issue.” Well, if later you allege that your employer's investigation was insufficient, this may come back to bite you.). This doesn't necessarily mean the recording won't be helpful, or you won't have an opportunity to explain, but it's something to keep in mind.
Once in a lawsuit context, both sides will request disclosure of any recordings relevant to the case. So, if you are planning to record your employer with the idea that you are protecting yourself in the event of future litigation, remember that everything you say will be listened to (with a very critical ear) and, at least at first, taken at face value.
Ultimately, this is something that is going be at the employee's discretion. Documenting evidence is worth your while and less likely to come back to bite you. Recording a long conversation could be a different story and should be done prudently and with the idea that someone will be listening to you some day.
