Sixth Circuit Rules Employers Can Avoid Fiascos Like Romney’s “47%” Recording by Banning Secret Recordings in the Workplace

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

With President Obama’s inauguration next week, I am reminded of the surreptitious recording that played a significant role in the final weeks of his campaign last year—the infamous “47%” recording. Secret recordings can have a powerful impact, particularly where the recording captures the unfortunate remarks of the unaware. The surreptitious recording of telephone and in-person conversations is fairly common in the workplace, particularly where an employee seeks to blow the whistle on his or her employer’s suspected wrongdoing or unfair treatment. Under Ohio law, an employee does not have to disclose the fact that a telephone or in-person conversation is being recorded because Ohio’s wiretapping law, Ohio Revised Code § 2933.52, is a “one-party consent” law, which means that it is not illegal to secretly record a conversation under Ohio law, so long as one person consents to the recording; this requirement obviously is satisfied by the consent of the employee secretly recording.

Generally, Ohio’s “one-party consent” law has been interpreted to mean that employers in Ohio (and other states with one-party consent wiretapping laws) are powerless to prevent or deter an employee from secretly recording conversations in the workplace. Indeed, employers often train their management employees to assume that all workplace conversations, particularly with a contentious employee, have the possibility of being recorded—and for good reason. Last year, Joe Bontke, an outreach manager for the U.S. Equal Employment Opportunity Commission (EEOC) in Houston estimated, in a report featured on ABC, that one-third of the people who come to the Houston EEOC office to file discrimination complaints bring some kind of digital evidence with them, such as audio and video recordings, email messages, text messages, and photos.

Ohio employers may not be powerless to deter secret recordings in the workplace, however. A recent ruling from the Sixth Circuit Court of Appeals in Jones v. St. Jude Med. S.C. Inc., No. 11-4211, (Nov. 8, 2012) indicates that employers not only may implement policies that preclude employees from secretly recording conversations in the workplace, but employers also may discipline the employee for doing so, even where the employee claims that the secret recording was protected activity under Title VII of the Civil Rights Act.

In Jones, an African-American female (Jones) who worked as a sales representative for St. Jude Medical S.C., Inc. (St. Jude) filed suit against St. Jude after she was discharged for failing to meet the requirements of a performance improvement plan and for secretly recording conversations with management and customers in violation of company policy. Jones claimed that, in January 2008, she began opposing allegedly unlawful employment practices, including being treated less favorably than her white, male counterparts, through emails sent to various St. Jude employees. She claimed that after engaging in this protected activity, St. Jude began taking retaliatory actions against her that ultimately resulted in her being placed on a performance improvement plan, including: removing her from certain accounts and failing to give her new accounts; giving her white, male colleagues replacement accounts while she was not given new accounts; and falsifying her sales numbers to justify removing her from certain accounts. Ultimately, she was fired from her job in December 2009.

However, in 2008, after Jones was removed from one significant account, she began secretly recording conversations with management employees at St. Jude, other coworkers, and physicians to whom she made sales calls, to gather evidence of her alleged unfair treatment. St. Jude had a policy prohibiting secret recordings in the workplace. Jones continued to record conversations secretly even after becoming aware of St. Jude’s policy. When her surreptitious recordings were revealed, she was discharged for violating the company’s policy prohibiting such recordings, as well as for failing to meet the terms of her performance improvement plan.

Jones argued that her secret recordings could not provide a legitimate basis for her termination because they were protected activity under Title VII. Title VII prohibits an employer from retaliating against an employee because he or she opposes the employer’s alleged discriminatory activity (the “opposition clause”) or because the employee participates in Title VII legal proceedings (the “participation clause”). The court rejected this argument, however, ruling that an employee may only claim Title VII protection for activities opposing alleged discrimination where the manner of the employee’s opposition is reasonable. The court reasoned that Jones’s secret recordings were not reasonable because she could have preserved evidence in ways that did not violate St. Jude’s policy prohibiting secret recordings, such as by taking notes of the conversations, seeking the information through the discovery process or by simply requesting permission to record the conversations. Although Jones argued that her conduct was reasonable because the recordings were not illegal, did not breach confidential information, were not disruptive of business operations, and were not disseminated beyond the litigation, the court rejected these arguments. The court reasoned that none of Jones’s arguments suggested that St. Jude’s policy was illegitimate or that it would have been futile to oppose the alleged discrimination in ways that did not violate the company policy. Accordingly, the court ruled that Jones’s recordings were not protected activity under Title VII.

The Sixth Circuit’s ruling in Jones provides Ohio employers (as well as those in other “one-party consent” states) with a tool for deterring secret recordings in the workplace. Such recordings could have a chilling effect on business operations and potentially violate or compromise the organization’s confidentiality policies. Employers who do not already have a written policy prohibiting secret recordings in the workplace should consider adopting one. The policy should be clearly communicated to employees and should specify examples of prohibited recording, including video recording, audio recording, and the use of electronic devices such as smartphones. It should also set forth the disciplinary action that could result from violation of the policy, including possible termination from employment. A disclaimer stating that the policy is not intended and should not be interpreted to interfere with the rights of employees to engage in concerted activity that is protected under the National Labor Relations Act (NLRA) also is advisable as the National Labor Relations Board has previously suggested, in Hawaii-Tribune-Herald, that any work rule prohibiting employees from making clandestine audio recordings in the workplace might be deemed unlawful under the NLRA, if the rule did not include an express exception for recordings made in an effort to protect or advance employee rights under Section 7 of the NLRA.

Josephine S. Noble is an associate in the Cleveland office of Ogletree Deakins.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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