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Know the Law: Can I record coworkers?

By ADAM HAMEL
September 09. 2018 11:06PM




Question: My supervisor at work says a lot of discriminatory things. Can I secretly record our conversations to try to “catch him in the act” and use the recordings as evidence in a case against him?

Answer: Former reality TV star Omarosa Manigault Newman recently grabbed headlines with her tell-all book about her short tenure in the West Wing. Some of the most shocking revelations came from the secret audio recordings she made of Chief of Staff John Kelly firing her in the Situation Room and of President Trump telling her, in the Oval Office, that he didn’t know she had been let go. Omarosa told Chuck Todd, of NBC’s “Meet The Press,” that “If I didn’t have these recordings, no one in America would believe me. No one. So, I protected myself, and I’m going to tell you I’m so glad I did.”

With the popularity of smartphones, almost everyone has ready access to the technology necessary to make secret audio recordings at work. It may be tempting to try to catch a supervisor or coworker on tape behaving badly as evidence to bolster a possible claim of discrimination or harassment. But New Hampshire employees should think twice before following Omarosa’s lead and pressing the “record” button.

New Hampshire’s laws regarding secret audio recordings are among the strictest in the country. State statute makes it a Class B felony to make an audio recording of a conversation unless all parties to the conversation consent to the recording. A handful of other states, including Massachusetts, have these so-called “all party consent” or “two party consent” laws, which effectively prohibit secret audio recordings by private individuals.

Other jurisdictions, like New York and the District of Columbia (where Omarosa made her recordings) have so-called “one party consent” laws, which permit recording of conversations as long as at least one participant in the conversation knows that the recording is being made.

Illegality aside, there are other reasons why secret recordings in the workplace may not be a good idea. As noted in a recent story on NPR, when people start secretly recording each other in the workplace, it creates a culture of distrust that can seriously harm morale. When people are afraid that they’re being recorded and that their words might be used against them later, communications are hampered, and that makes it harder to get work done.

Instead, employers and their employees should strive to foster workplace cultures where discrimination, harassment and other misconduct are not tolerated, and where complaints are taken seriously and investigated promptly and thoroughly.

Adam Hamel can be reached at adam.hamel@mclane.com.

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm St., Manchester, NH 03101 or emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.



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