Michael Best attorneys Dan Kaufman and Ben Johnson were quoted in the Society for Human Resource Management (SHRM) article "Expect More Secret Recordings in Wake of Carlson Settlement" on September 9, 2016.
Gretchen Carlson's widely publicized $20 million settlement with 21st Century Fox likely will lead to more secret recordings of harassing conversations, legal experts predict.
Former Fox News anchor Carlson reportedly taped the network's CEO and President Roger Ailes for more than a year on her iPhone, secretly recording him making sexually harassing comments.
Carlson's strategy is likely to be followed by other employees in similar situations and, in most states, one-party-consent recordings are perfectly legal, said Tom Spiggle, an attorney with plaintiff-side Spiggle Law Firm in Arlington, Va.
Christine Walters, J.D., SHRM-SCP, an HR consultant with FiveL Co. in Westminster, Md., said all-party consent is required only in 12 states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Some sources leave Nevada out because Nevada has an exception where prior consent and exigent circumstances exist, she noted.
"A lot of these cases come down to he said/she said," Spiggle remarked. Sometimes, e-mail can provide solid evidence of harassment. But if the harassed individual "can get a recording of the wrongdoer's voice, it's hard to deny that."
Even if an employer can win a harassment case when the main evidence against it is a recording in an all-party-consent state, the employer should consider taking action against someone who sounds like a harasser on recordings, Spiggle said. "If it smells bad, someone needs to be disciplined or fired. There should be intolerance" for sexual harassment, even if an employer can prevail in a lawsuit on a technicality, he stated.
Managers Recording Employees
Walters said she was concerned about "managers who start recording conversations with employees thinking they are trying to keep themselves safe from false allegations."
Even if the employer's policy permits recordings or is silent about it, "remember the golden rule," Walters said. "Would you want to be surreptitiously recorded? How would you feel about the level of trust a co-worker, manager and direct report had in you if they were secretly recording you? If one employee, manager or supervisor has an issue about trust with any other employee, let's find a path back to trust rather than resorting to secretly tape-recording one another."
Employers "would be well-advised to have a handbook provision or policy prohibiting recording of conversations," said Michael Volpe, an attorney with Venable in New York City. "Employers need to announce and disseminate such policies and then enforce them in a nondiscriminatory manner."
However, the National Labor Relations Board has found that a blanket ban on workplace recordings without a supervisor's consent would violate the National Labor Relations Act, noted Daniel Kaufman and Ben Johnson, attorneys with Michael Best & Friedrich in Chicago, in an e-mail. To be lawful, the policy would have to be "narrowly drawn and tied to business justifications," they wrote, noting that the case is on appeal in the 2nd U.S. Circuit Court of Appeals.
The Carlson settlement "shows that failing to address a harassment situation at its earliest stages can result in severe legal and other consequences, including a large settlement and substantial damage to an employer's reputation," Kaufman and Johnson wrote.
In a statement, 21st Century Fox said, "We sincerely regret and apologize for the fact that Gretchen was not treated with the respect and dignity that she and all of our colleagues deserve."