Tuesday, April 29, 2014

What Sterling's Racist Recording Means to Whether You Can Record Your Co-Worker


The media are abuzz with news that the girlfriend of Donald Sterling, the owner of the LA Clippers NBA basketball team, recorded him making shocking racist remarks during a private telephone call. He admitted that it was his voice on the recording, and on April 29, 2014 the NBA Commissioner barred Sterling for life from attending games, practices, team facilities and board of governors meetings, and fined Sterling $2.5 million.

Was the recording legal?  And what does this mean for employees who want to make secret recordings of their co-workers or supervisors?

The first issue is state law, and the second issue is whether the employer has a policy forbidding such secret recordings.  As to state law, some states require “one-party consent.” This means that only one party to the conversation needs to consent.  So an individual may be the “one party” who consents to his or her own recording of a conversation.  But the individual must be a party to the conversation in order to record it.  The person can’t stand behind the drapes and record a conversation to which he or she is not a party.  But in a "one-party consent" jurisdiction, an individual who is not a party to the conversation may still record it as long as one party consents and has full knowledge that the communication will be recorded.

In a “two-party consent” state, everyone in on the conversation must consent. The law doesn't necessarily require the parties to the conversation to say "I agree." Staying on the line after the person knows the conversation is being recorded is generally enough.  Even if the state where the person is doing the recording permits one-party recording, if the state where the other party is located requires multi-party consent, the recording may be illegal.

Federal law and the laws in most states, including Virginia and the District of Columbia, require only one-party consent. Maryland is a two-party consent jurisdiction. You may remember that Linda Tripp, who in the ‘90's recorded Monica Lewinsky discussing her sexual relationship with President Clinton, was prosecuted for making those recordings from her home in Columbia, MD. The case was ultimately dropped because the Independent Counsel investigating the charges that led to the impeachment of President Clinton had given Tripp immunity.

The District of Columbia's wiretapping law is a "one-party consent" law. DC makes it a crime to record a phone call or conversation unless one party to the conversation consents. See D.C. Code § 23-542.  Virginia's wiretapping law is a "one-party consent" law. Virginia makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Virginia Code § 19.2-62.

The Reporters Committee for Freedom of the Press has compiled a useful chart of the rules in all 50 states, available at http://www.rcfp.org/reporters-recording-guide/tape-recording-laws-glance.

What about federal employees?  Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d).

But aside from state or federal laws, private employers and government agencies may have policies that prohibit their employees from surreptitiously recording conversations in the workplace. For some federal agency policies, see e.g.  * * * v. Postmaster General, EEOC Appeal No. 0120122527(October 30, 2013); King v. Commissioner, International Boundary and Water Commission, EEOC Appeal No. 0120114319 (March 8, 2013); Edwards v. Postmaster General, EEOC Appeal No. 0120093370 (July 18, 2012).  Employees may then be disciplined for failing to comply with the policy.  See e.g. Capeless v. Department of Veterans Affairs, 1998 MSPB LEXIS 761 (June 24, 1998); Sternberg v. Department of Defense Dependents Schools, 1989 MSPB LEXIS 456 (June 6, 1989); Geissler v. Runyon, 1996 EEOPUB LEXIS 3852 (Nov. 21, 1996).



Furthermore, in Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (February 14, 2011), the National Labor of Relations Board held that an employee’s secret tape recording of a meeting with his supervisor was protected activity; and, as a result, the employee’s termination was a violation of the National Labor Relations Act. 

While the employer had implemented a rule that generally prohibited employees from making secret recordings in the workplace, the employer had implemented that rule only after it learned that the employee had secretly tape recorded the meeting. Based on these facts, the Board found that the rule was, among other things, overly broad and ordered the employer to rescind the rule and notify all employees in writing that the rule was no longer in effect.




Title VII prohibits retaliation against an employee for "assisting or participating in the investigation of his or her complaints of workplace discrimination. In Heller v. Champion International Corp., the Second Circuit Court of Appeals ruled by a 2-1 vote that tape recording the boss in order to gather evidence of discrimination was protected and that employee could not legally be fired for such activity. According to the court,  “surreptitious tape-recording, to be sure, represents a kind of ‘disloyalty’ to the company, but not necessarily the kind of disloyalty that under these circumstances would warrant dismissal as a matter of law.”



Other courts have taken a contrary approach.  As the Seventh Circuit Court of Appeals observed in a retaliation case brought under Title VII of the Civil Rights Act of 1964, Argyropoulos v. City of Alton, 539 F. 3d 724 (7th Cir. 2008):



Although Title VII indubitably protects an employee who   complains of discrimination, the statute does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination. As we have previously explained, inappropriate workplace activities are not legitimized by an earlier-filed complaint of discrimination.


A decision by the Sixth Circuit Court of Appeals, Jones v. St. Jude Medical S.C.,504 Fed. Appx. 473 (6th Cir. 2012), reached a similar conclusion, holding that employers not only may implement policies that preclude employees from secretly recording conversations in the workplace, but employers may also discipline the employee for doing so, even where the employee claims that the secret recording was “protected activity” under Title VII.

  

So what about Donald Sterling’s girlfriend?  California, where Sterling’s girlfriend made her recording, has a “two-party consent” law. It’s crime in California to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. According to news stories, the girlfriend alleges that she has more than 100 hours of audio of conversations with Sterling, and she contends that she made the recordings with Sterling’s approval because at age 80, he had trouble remembering things and used the tapes as memory-fresheners. So far there’s no word that she is going to be prosecuted.

- This blog entry was prepared by Elizabeth L. Newman


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