I get asked all the time by clients whether they should make a recording of what is going on in the workplace, and the answer is not simple. If you can capture some ‘damning’ evidence it can be invaluable to proving your claims. But it is not as easy as just asking and getting an answer that serves as an admission that your rights are being violated. Here are some things to think about when deciding if making a recording might be a good idea:
Is It Unlawful to Make Recordings in Indiana? You first need to consider whether you are legally permitted to make a recording of a conversation of a third party. After all, you would not want to be accused of wire tapping or find yourself in some other criminal or civil statute protected individuals from this unwanted contact. To protect yourself, you need to know if you are in a ‘one-party consent’ state. At the time this blog was written (April 2018), Indiana is such a state. That means you can record just about any one, any time without providing prior notice that you are going to make a recording. A quick google search will tell you how other states handle the issue of making recordings and confirm that Indiana still permits this activity. You should do this prior to making any recording or check with an experienced attorney.
Does My Employer Have a Policy Prohibiting Making Recording? Even if you can legally make a tape or video recording, the next question is whether your employer has a policy against making a recording. Recording conversations is not likely to be a protected activity, and employers in recent years have started to incorporate anti-recording policies in their handbooks. If they have – whether to protect company secrets or just out of principle – the fact the Company catches you making a prohibited recording could lead to your termination. So, I recommend you check to see if your employer has a policy prohibiting this activity. Larger, more sophisticated companies typically have policies.
If you are not sure if such a policy exists, you will have to decide how you want to approach this. Obviously, you can’t go to Human Resources or your supervisor and tell them you are going to make a recording. They will discourage you from doing that. Moreover, individuals knowing they are being taped are likely to be careful with what they say around you, making it unlikely that you will get helpful information.
If there is no policy, is there anything else I should be worried about? Absolutely. The recording will also pick up what you say, and it might put you in a bad light. If it looks like you coerced or threatened a witness to cooperate, the statement you obtain may have suspect quality. Moreover, you will be talking during the recording, and there is a chance you will say something that can be used against you. My advice is to really think about what your approach will be and to walk through it a time or two before making any recordings. This should limit you from making a mistake that could cost you.
Do I have to keep the recordings? This is a tricky question, but the answer is likely ‘yes’. If you intend to file suit, recordings could be evidence. The common response I get to this statement is that the recording didn’t have anything on it that I could use. That is not the Court’s evidentiary standard, however. If the recording could have supported the company’s position, it is arguably evidence that could have helped them. While I do not presume to put myself in the position of a judge, I can envision scenarios where a Defendant asked for all recordings, discovers you have deleted some or all, and asks the judge to grant the company a presumption that if such evidence still existed it would hurt your case. Additionally, while the reality is that few cases go to trial, I can also envision a defense attorney attacking you on the stand about the destroyed tapes. A jury might not like hearing you did that, and this also can present problems for you. I would not delete any recordings until and unless I first sought guidance from an attorney.
Can I use the tapes as evidence? Of course. However, you have to establish that the tapes are accurate and authentic. The rules can be kind of tricky, so I would propose you review this link to get more information about how to insure the tapes or videos you make can be later used by you if necessary. See http://federalevidence.com/blog/2013/may/authenticating-recorded-conversations.
Should I make copies? It is a good idea to make a back up (or multiple copies) and verify that they are the same. If you hire an attorney or share your complaint with a federal or state agency, they will certainly want to listen to your recordings. Things happen, however, and to lose the recording could be devastating. Keeping the original in a safe deposit box at a bank or in a safe in your home is a good way to protect the original. I would suggest you only provide copies to other people.
I hope this brief information was useful. If you have any questions you would like to ask, feel free to contact my firm at _________________ or by submitting an internet inquiry on the home page.
