Help! An Employee Recorded a Conversation at Work!

What do you do when an employee is recording conversations in the workplace?

It used to be that secretly recording conversations at work was a James Bond-style effort. Employees had to find a recording device and figure out a way to keep it hidden in order to get whatever evidence they were looking for. Now, just use a smartphone! According to the Pew Research Center, 81% of Americans own a smartphone. Remember the last time you didn’t have your phone on you? Me neither. We carry our phones with us everywhere we go. Even for employees who can’t keep their phones on them while working, it’s easy to quickly grab the phone from the locker when needed.

Employees don’t generally announce that they’re recording you. Sometimes, you’ll figure it out. I was meeting with an employee one time and noticed that his phone was sticking up out of his shirt pocket. He admitted he was trying to record the meeting. It’s not always this obvious, though. You might not know you’re being recorded until afterwards.

It’s important to determine your policy on recordings and how you’ll handle these situations. Figure this out ahead of time because, chances are, if an employee feels the need to record conversations, it’s not because things are peachy. Things aren’t going well and are probably tense, so you don’t want to suddenly be blindsided with this topic and have to try to figure out what to do.

First, know your state laws. A few states require that both parties consent to the recording. So, if you’re in one of those states, it’s really easy to just tell the employee that state law requires both of you to consent and you don’t consent to the recording. Otherwise, state laws don’t require consent from others.

Determine your policy on recordings. Regardless of your state’s law, you have the ability to decide what your company policy will be. You don’t have to allow employees to record conversations, and I certainly recommend prohibiting them. Recording conversations diminishes trust. It’s impossible to have a high-trust environment when employees are secretly recording others. Ideally, have a written policy prohibiting recording conversations. It’s much easier to consider this a performance expectation if it’s written. If you don’t yet have a company policy, you can still determine your department practice and uphold that as the expectation.

Keep in mind this goes for both leaders and staff. I’ve seen leaders want to record conversations with their staff members, often in an attempt to protect themselves from false accusations, but this creates huge trust issues. It makes staff feel like they should likewise start recording, and it creates issues enforcing the policy. Plus, it’s much easier to tell others that they can’t record when you tell them you aren’t recording either.

Mention the policy if you suspect you’re being recorded. If you’re getting an odd vibe or an impression you’re being recorded, ask the employee if he or she is recording. I wouldn’t kick off every conversation with this question; that makes it sound like you have something to hide, which could make others wonder if they should be recording you. But if you get the impression employees might be recording, then calmly ask them if they are. If they say yes, let them know recordings aren’t allowed and you don’t consent, and ask them to stop for the conversation to continue. Even if they say they aren’t, tell them you wanted to be sure because recordings aren’t allowed and you don’t consent. This way, if they actually are and the recording surfaces later, their credibility could potentially be damaged for giving you false information. (Know that this doesn’t always go over well. One employee I was meeting with got very offended that I thought she was recording. But she seemed like she was, and it needed to be addressed.)

If you’re meeting with an employee who has tried to record you before or you have reason to believe the employee may try to record the conversation, then address the policy at the very beginning, and have someone else there as a witness.

Ask why the employee felt the need to record. If an employee is recording conversations at work (whether recording you or someone else), ask the employee what’s going on and why the need to record. This is a really important question, so try not to be defensive or antagonistic. Ask it with an intent to really understand where the employee is coming from. It may not be as simple as an employee just not following directions, plus, you want to understand the motive. This can also provide an opportunity to explain the reason for the policy. If the employee is having performance issues, you may not get a lot out of the response. However, if the employee is recording out of a concern – perhaps a discrimination or harassment concern – then you definitely want to know that so those concerns can be appropriately investigated.

If you have an HR department, be sure to let them know. They may want to follow up with the employee to ask about the reason as well, particularly if the employee was trying to record you as the leader. Allow HR to partner with you both in sorting through the dynamic that’s led to secret recordings.

Have a witness (ideally HR)! Remember, it’s not your happy employees who tend to record conversations; it’s your unhappy ones. The ones who potentially are being investigated, are in the midst of disciplinary action, or are trying to get something against the company. If you think an employee is this unhappy with you and might try to record you or try to somehow get you to do or say something wrong, don’t meet alone! Ideally, involve HR and have them there, but at least have another leader present as a witness.

Communicate as if you’re being recorded. Yes, you have a policy and you’ve told employees not to record, but that doesn’t automatically mean it won’t happen. You may still find out that an employee recorded a conversation with you. Here’s the thing – if you’re being appropriate, then everything should be fine. Hypothetically, the idea of being recorded shouldn’t make a big difference in your communication. Particularly when it comes to difficult employment conversations, such as disciplinary actions or terminations, be thoughtful and intentional in your communication. Be direct and clear, and avoid ambiguity. As a leader, your communications with employees should always be so professional and respectful that no concerns would arise if it turned out that a conversation was recorded.

Involve legal counsel. This post is not intended as legal advice, so be sure to involve legal counsel as well in handling recording situations. In some cases, employees who record conversations can be litigious, and legal counsel can help guide you.

There can be lots of reasons for employees recording conversations in the workplace, but this behavior can be detrimental to your workplace culture. In some cases, the employee may be the issue. In others, the real issue may be the leader or another employee. Regardless, once you know what the issue is, work through it to resolve it without the role of recordings. This way, you can address the problem while maintaining a high-trust culture.

Photo credit: By Viktorus / Canva