EMPLOYEE BRINGS RECORDER TO VISIT

System · May 2003

My boss wanted to let ee go. Though ee may not have known when it might occur, he obviously knew there was a problem, and when asked to come to boss's office, brought a recorder. He was asked not to turn it on...conversation got a bit "testy"..bottom line was, ee took tape out of recorder.

This was a first for me? Does ee have a right to record a meeting (be it discipline or exit)?

Thanks for your input.

Don D · May 2003

No, he did not have a right to record the meeting. If an ee refused to have a discussion with HR without being able to tape it, I would terminate him for impeding a company investigation or for refusing to cooperate with a company disciplinary procedure.

jmpmo · May 2003

"I know God only gives us what we can handle, but I wish he didn't trust me so much." Sister Therese

Why couldn't any ee tape a conversation or meeting? Just wondering for my own benefit. With the things I have been seeing lately, I am sure that will be next.

Hunter1 · May 2003

I agree with Don. It's your meeting, you get to set the conditions, including no tape recording. However, with today's technology, you should conduct meetings as though they were being recorded, because they may very well be, unbeknownst to you. I once had an EEOC investigator call me to do an initial telephone investigation of a complaint, and at the end of our conversation he told me that my voice was very familiar. When I said that I didn't believe we had ever met, he said that he had listened to a half hour conversation I had with the complaining former employee. She had come to my office to discuss her termination and put her purse on my desk. I didn't think anything of it at the time. Now I do! (P. S. The complaint was dismissed.)

Trinity · May 2003

I have not run across an employee who wanted to record a meeting (at least to my knowledge), however, we have had several who wanted a witness in the room with them when being disciplined. We allow them to have a member of middle management with them, since we don't want disciplinary matters known throughout the whole staff. Some of them want to bring in Earl their drinking buddy and that doesn't cut it.
But we figure if we have another middle manager in there (who the employee can choose) we satisfy their need to have conversations validated and the manager will keep the conversation private.

Hunter1 · May 2003

Be a little careful about denying any employee their choice of representative in an investigatory meeting which might result in discipline. The NLRB thinks that even non-union employees have Weingarten rights, that is, their right to 'representation' of their choice at those type of meetings.

Rockie · May 2003

>Be a little careful about denying any employee their choice of
>representative in an investigatory meeting which might result in
>discipline. The NLRB thinks that even non-union employees have
>Weingarten rights, that is, their right to 'representation' of their
>choice at those type of meetings.

Hunter: To clarify, I believe this is ONLY in investigatory meetings and the individual who is selected as a "witness" should be another employee - not a drinking buddy, mother, spouse or an attorney. Disciplinary or termination meetings are not included in Weingarten to my knowledge. Someone correct me if I am wrong.

Margaret Morford · July 2003

You're exactly right! The only thing I would add is the purpose of the meeting needs to be investigatory (as you said above) AND could lead to discipline for the employee being interviewed. The employee cannot get another employee witness if the employee is being interviewed as a witness to an incident only.

If they ask for another employee and are entitled to it, the employer can either call off the meeting and issue whatever corrective action they deem necessary (pretty dangerous) or (I recommend) make clear that the witness employee is there just for that purpose only. He/she may talk to the requesting employee, but may not ask questions or interject themselves into the proceedings. Each time they try to talk to anyone but the requesting employee, stop and remind them of their role.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

ray a · May 2003

I believe secretly taping conversations like this is illegal.

jmpmo · May 2003

[font size="1" color="#FF0000"]LAST EDITED ON 05-09-03 AT 07:08AM (CST)[/font][p]"I know God only gives us what we can handle, but I wish he didn't trust me so much." Sister Therese

Actually, it depends on the state laws. In Missouri, you can tape a conversation as long as "one party has knowledge of the recording." In Kansas, that same law does NOT apply. Wierd really.

RussJ · July 2003

>I believe secretly taping conversations like this is illegal.

Unfortunately, Ray, that depends on the State you work in. I have had 2 employees (1 in Idaho and 1 in Missouri) tape conversations without the knowledge of the participants in the meetings. In both States, according to our legal advisors, no laws were broken and punishment could be viewed as retaliation to their EEOC-based complaints.

Don D · May 2003

Trinity, Don't forget that the National Labor Relations Board ruled a year or so ago that the NLRA does give a non-management employee (union company or not) an absolute right to have an employee of their choosing in the room for any investigatory meeting with you where there is a possibility of discipline. This does not include a lawyer or Earl at the tavern, however, unless Earl is also a co-worker. We cannot decide who they can choose to join them in the meeting, nor can we restrict their choice to a member of a management group. You can receive the same level of sanction for violation as can a union facility.

lnelson · May 2003

I believe the only time you can record a conversation is when both parties involved are aware of it being recorded. Otherwise, it should not be valid.

jmpmo · May 2003

>I believe the only time you can record a conversation is when both
>parties involved are aware of it being recorded. Otherwise, it should
>not be valid.

Again, you need to check state law because in some states only one party needs to know of the recording.

Nat · May 2003

[font size="1" color="#FF0000"]LAST EDITED ON 05-09-03 AT 08:14AM (CST)[/font][p]Employee doesn't have the right to bring in a recorder. In fact, I have refused to have meetings because the employee insisted on bringng one and that "their attorney" told them to bring the recorder. Hunter1 is right about being careful about limiting who the employee can bring to the meeting. The NLRB (whether the company is union or not) requires that an employee may bring another co-worker into a meeting if it is for investigative purposes. If discipline has already been decided they are not allowed to bring just anyone they want. Don't quite understand how the NLRB governs us non-union companies, but that's the way it is.

I had an employee (50 year old male) want to bring his sister to a meeting and in they walked with a tape recorder that his "attorney" had told him to bring. Needless to say, I sent the sister and the recorder to the lobby.

jmpmo · May 2003

[font size="1" color="#FF0000"]LAST EDITED ON 05-09-03 AT 08:31AM (CST)[/font][p]"I know God only gives us what we can handle, but I wish he didn't trust me so much." Sister Therese

Ok, I still don't understand why an employee could not bring in a tape recorder. No one has really answered that. What state or federal law is this? If HR or whoever is conducting the meeting will be doing nothing wrong, then who cares who hears it? Forgive me for playing devil's advocate, but I am just trying to get a full understanding.

ray a · May 2003

Can you be certain the employee will not edit the tape to suit themselves?

sonny · May 2003

[font size="1" color="#FF0000"]LAST EDITED ON 05-09-03 AT 10:10AM (CST)[/font][p]Or re-record, edit to take things out of context

Sorry ray, guess you already said that

Hunter1 · May 2003

OK devil's advocate, here's my take on your question: It's not a question of law; there's not a law that would force you to allow a recorder, so you get to set the rules. As other posters have said, are you going to allow the sister or mother into the meeting, a drinking buddy from the local watering hole? Since you're doing nothing wrong, why not? Because it's your 'turf', you get to set the rules. You want to allow a tape recorder, or even tape the conversation yourself, go ahead.

MS HR · May 2003

In Mississippi, a conversation can be secretly recorded if one of the parties is aware of the taping. So, pls. check with your state statutes about this.

Don D · May 2003

Since the question seemed to be "Should we ALLOW the ee to bring it in?", I assume the HR person was aware of either the request or the instrument itself. In either of those cases, I would prohibit it for all the reasons stated. What if they wanted to bring in a court reporter to speak into one of those reverse-cheerleader cones during the conference? No way! It's my meeting, I'll record it if I choose to, but would always tell the ee it was being recorded, which I have done in several union scenarios where 15 people were interviewed back-to-back and I didn't want to take copious notes for 3 hours and transcribe them.

Now, if the question had been, "If the ee records the conversation without my knowledge, can it be used?", the answer in this state would of course be YES.

dolores · May 2003

As a lawyer I tend to focus not only on whether or not local, state, or federal law prohibits certain practices, but also on the practical aspects of them -- in other words, "Will it play in Peoria". If the meeting results in disciplinary action or termination, will the employee claim in litigation later that something was said in the meeting to his benefit, something which the employer denies, but unfortunately the employer wouldn't allow a taped recording? Did the employer promise something, make a retaliatory threat, etc.? Don't know the answer to these question, just pointing out that while an employer might have the law on his/her side in refusing to allow employee recorded meeting, such refusal may result in a negative impression of the employee should litigation happen in the future.

Shawn · May 2003

We are an Ohio public agency. When we want to suspend / terminate an employee the employee has a legal right to have a pre-disciplinary hearing to hear the charges and respond. After the hearing, the employer can suspend / terminate.

We serve children. One of our employees was alleged to have had voluntary sexual contact with one of the teenage children we serve. Kid said it was so and the employee denied it. We required polygraphs (Ohio public employers are exempt from the polygraph protection act.) The kid passed and the employee failed.

I recorded the meeting where I advised the employee (who was in a protected class) and his union steward that the agency intended to schedule a pre-disciplinary hearing and propose discharge. I then told him that the agency would accept his resignation if he wanted to give it. I wanted the meeting on tape so the employee could not claim constructive discharge. (i.e. I didn't say you are fired if you don't quit....I said we are proceeding with scheduling a hearing that may result in your discharge. )

I think the ecorderhelped. So, there is an example of when HR can use the recorder to its advantage. Employee resigned.

MS HR · May 2003

Shawn,
My only concern is that your ex-employee will obtain employment in a similar position with a different company. Why didn't you just terminate so at least he wouldn't have an unblemished record and also wouldn't be able to get unemployment.?

dolores · May 2003

I'm fine with the employer recording meetings with employees (pursuant to individal state law) based on the example you cited. Then if the employee objects, he/she faces the question of "What didn't you want the public to hear?" The only time it would come back to bite the employer is if the supervisor is not versed in employment law "do's and don'ts", and makes a "don't" statement that the employee might not realize is significant enough to remember, but his/her lawyer might when reviewing the tape!

ritaanz · May 2003

Dolores: What type of law do you practice? I don't have a warm, fuzzy feeling with your answer. I guess I'd like to know whose side are you on?

Don D · May 2003

She seems to have taken a recess.

dolores · May 2003

I practice administrative law where I represent the employer -- so I operate as a defense lawyer. I've also won a significant majority of the employee grievances wherein I represented a large law enforcement agency. Part of my success in this is I always try to anticipate how an administrative judge or jury would think, which includes the "swallow test" -- will a judge or jury swallow this argument. I'm one of the first to say the law rules, but as you can see various judges from around the country can take the same law and interpret it differently.

Don D · May 2003

Well, given this scenario, I guess I'm not that interested in "what might play in Peoria". We don't operate the HR function based on a paralizing analysis of what ifs to the extent of caving in on our operational procedures and common sense practices. I will be the very first among you to say that I always do give thought and careful consideration to legal ramifications; however, to grant an employee permission to record a conference with HR based on the remote assumption that if we don't the ee might later use that decision against us to influence a jury that we had something to hide.........is at best, a stretch. I would think our defense attorney could easily derail that. If we allow ourselves to be sucked in entirely by the "Peoria Mentality" we will be reduced to nothing more than puppets at the hands of all who would be puppeteers.

Kathie · July 2003

Is it legal for an employee in the state of Florida, to bring a tape recorder to a meeting? Is it legal or not?

If it's legal, can the employee get fired because he refuses to turn off the tape recorder?

Thanks in advanced,

Kathie

Don D · July 2003

It is of course 'legal' in all corners of America 'for an employee to bring a tape recorder to a meeting. Whether or not one side or the other consents to the tape recording of a proceeding is quite another matter, in Florida or not. A company is within its rights to refuse to allow the recording of a meeting or to refuse to conduct its meeting if the employee refuses to behave and cooperate with the employer's rules about its meeting. If I told an ee to not record a meeting and he/she refused to follow my rules of my meeting, I would stop the meeting and make a record of that and discipline the ee under the company's insubordination rules.

Likewise, if I were going to record my own meeting and so advised others in the meeting and he or they vocally dissented, I would not record it, unless it was policy to record all meetings of like nature. The employees dissent or insistence one way or the other cannot be allowed to chart the course of an employer's business conferences. I have not heard of any state law requiring one to consent to/allow the recording of conversations by another.

Not being a lawyer, I tend to think state law on this matter involves the use that can be made of such recordings, if any, rather than whether it is illegal to record the meeting. But, I would never follow the advice of any attorney who suggested HR people 'ought to allow people to record meetings or else suffer the fallout of the dreaded what-were-you-hiding question'.

EMPLOYEE BRINGS RECORDER TO VISIT

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