Tape Recording an Investigation

Kymm

If we are conducting an internal investigation and talking to individual employees, can we tape record the conversation IF we get the consent of the employee before we start? (Have his/her consent recorded at the start.)

Theresa Gegen TX

[font size="1" color="#FF0000"]LAST EDITED ON 08-02-02 AT 11:55AM (CST)[/font][p]Unless you have a union and so long as the tape is not going to be used for voice identification, with employee consent it would be legal (this is assuming your state does not have any specific laws forbidding taping -- Texas does not, but some other states might).

But, there are several downsides to taping:
-- it might make the employee nervous and make them clam up
-- some employees might feel oppressed by the tapes
-- the tapes will have to be maintained and will be discoverable in any future legal action
-- it might make the investigator nervous and make them clam up

I also think the company runs a risk if the employee refuses to talk on tape and the company fires that employee for the refusal. There is one case that I know about where the employer used the tape for "voice identification" and the court held that it was a violation of the employee polygraph protection act.

If the company does decide to tape, it should get the entire communication on tape, including having the employee repeat that he or she knows the conversation is being taped and has consented to the taping.

NOTE: if you are in a union environment (and the employees are covered by a collective bargaining agreement) I would be very reticent about taping. The union could argue that it is something that must be bargained over, etc.
Good Luck!

Kymm

Thanks, Theresa - Does anyone know about California law regarding this?

Don D

>NOTE: if you are in a union environment (and the employees are
>covered by a collective bargaining agreement) I would be very reticent
>about taping. The union could argue that it is something that must be
>bargained over, etc.
>Good Luck!

Theresa: We are a unionized manufacturing company. I have taped interviews in lengthy investigations where 15 ee's were involved over the course of several days, just because notetaking would be massive. This has been done with consent and I have used it in NLRB trials with no repercussions and no admonishment from the judge. Our contract is silent on this subject. The union does not have the privelege of calling foul and insisting it be bargained over. The time for that is during negotiations according to the legal opinions we have gotten. On the whole I agree that taping investigations or conversations is not a positive thing and has a multitude of downsides.