Employment lawyers and HR professionals advise finding an alternate way to back your claim.
Talk like Omarosa is taping.
Omarosa Manigault Newman, the former reality-TV star whose 11-month tenure in the White House Office of Public Liaison culminated in a scorched-earth campaign against President Trump, has sought to paint her former boss as an unstable, incompetent racist. And in a wall-to-wall media blitz to promote her blistering new tell-all, “Unhinged,” she has also released a stream of secret recordings — including audio of private conversations and at least one video — in an attempt to support her claims.
The ousted aide is believed to possess up to 200 recordings, the New York Times reports. Trump administration officials, in turn, have characterized the three-time “Apprentice” villain as a disgruntled ex-employee; the President has attacked her in recent tweets as “vicious, but not smart” and “that dog.” The Trump campaign last week also filed an arbitration complaint against Manigault Newman, alleging she had violated a 2016 nondisclosure agreement.
She isn’t the only one who’s caught the recording bug: Former Trump attorney and fixer Michael Cohen, who pleaded guilty to campaign-finance violations and implicated the President in a hush-money deal Tuesday, released audio last month of his ex-boss apparently discussing the purchase of rights to a former Playboy model’s story of her alleged Trump affair. Twenty years earlier, Linda Tripp’s secretly taped conversations with Monica Lewinsky helped tank Bill Clinton’s presidency. Even Kim Kardashian, at the height of Kanye West’s 2016 beef with Taylor Swift over his “Famous” lyrics, dropped footage of the singer approving at least part of a controversial line that referenced her.
“You used to have to hide a tape recorder (or) get some kind of spying device … Now, obviously, it’s something you can do on your smartphone — so we’re starting to see a lot more of it,” Paula Brantner, an employment attorney and senior adviser to the nonprofit Workplace Fairness, told Moneyish. “But just because it’s so easy doesn’t always make it a good idea.”
There are a variety of situations in which ordinary, non-White House workers might be tempted to create surreptitious recordings, Brantner said: You might believe you’re being directed to violate the law or do something unethical; you might anticipate being fired or blamed for something you didn’t do. Someone could be trying to gaslight you, or you might want to catch them engaging in one type of behavior in private while they act otherwise in public. “A lot of harassment obviously depends on privacy, because the harasser thinks they can get away with it,” Brantner added.
“The human being in me understands why people would want to wear a bodycam at work and record every conversation,” human resources consultant Laurie Ruettimann told Moneyish. “Corporate interests are the opposite of worker interests, and, in the age of #MeToo and forced arbitration, I would want to use every tool at my discretion to prove my point that I’m a victim.”
But chances are it’s not your best option, Ruettimann and others suggested. Here are all the things to consider before you hit record:
See if you live in a one- or two-party consent state. Federal law, 38 states (including New York) and the District of Columbia have one-party consent laws, meaning just one person involved in a conversation needs to consent to the recording. Eleven states with two-party consent laws — including California, Florida, Maryland and Pennsylvania — require every party’s consent for a recording. “The last thing you want to do in a potentially illegal situation is violate the law yourself,” Brantner said, “because you won’t be able to use those tapes as evidence of anything, and you could get into more trouble than you’re already potentially in.”
Check your employer’s policies. “You want to make sure your company doesn’t have a no-recording policy,” Phyllis Hartman, founder of the human resources company PGHR Consulting, told Moneyish. You might find that info in documents you signed when you were hired, in an employee handbook, or on your company intranet, Brantner said.
Ask if there’s a better way to get the information you need. Could you satisfy the same objective by having a witness present, Brantner suggested, or by obtaining relevant documents? You might also make a recording of yourself relaying the incident right after it occurs, and use that date- and time-stamped file as evidence later, she added: “It’s not as reliable as recording the person actually saying what was said, but it also doesn’t bear the same risk as recording someone without permission — potentially in violation of the law or employer policies, or in ways that would potentially violate their trust.”
Know that most workplaces are heavily surveilled, Ruettimann said. “Restaurants and retail spaces often have cameras everywhere. Some businesses record keystrokes on computers and company-issued mobile devices to monitor employee activity. They want to predict your intent to quit your job, and they’re also guarding against corporate espionage,” she said. “So instead of taping a conversation, think about asking your employer to turn over their records.”
Also read: What happens if you break an NDA?
Think about your reputation. People feel violated after learning they’ve been recorded, pointed out Brantner, a breach that can “irrevocably” damage your relationship with them. “The HR professional in me wants employees to think about the long-term consequences of their behaviors. Taping a conversation might make you look aggressive and deceitful, even if you are a victim,” Ruettimann said. “I would advise workers to find a neutral, supportive third-party observer who can bear witness and testify, as needed, in court.”
Seek legal advice. “An attorney in your state is going to know what the recording laws are and whether it would be a good strategy in the situation,” Brantner said. Hartman agreed: “If I thought, ‘This is the only way I’m going to be able to defend myself against so-and-so,’ I’d go find a lawyer,” she said.
As a general rule of thumb, don’t record your colleagues. “I would generally not advise doing it, because there’s too many gray areas around it,” Hartman said. “It’s tempting when you see someone like Omarosa, who currently appears to be winning,” Brantner added. “(But) most people are not going to be in a situation where they have that much to gain — and they have a lot they can lose.”
“If you’re working for an employer who puts you in the position to secretly record your interactions, you need to quit. It never gets better,” Ruettimann said. “This advice is coming from an HR lady who was paid to make things better. I couldn’t fix it. That’s why I no longer work in corporate HR.”
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