Sexual Harassment - SA, TX

sandyq

We recently had an HR employee file Sexual Harassment charges against a member of management. When asked why she did not bring this to the attention of management or her supervisor when it happened, she said she thought it would just go away. (Yes, an HR employee said this.) She was recently terminated due to a lack of production and her attendance, which she had been counseled on prior to her sexual harassment claim. She has now filed Sexual Harassment and retaliation charges through EEO. Due to this incident we are trying to find out if it is legal to tape record exit interviews.

Theresa Gegen TX

In Texas, one party to a conversation can legally tape the conversation. (NOTE: an employer cannot tape conversations between employees without the knowledge of atleast one party to the conversation). However, tape recording these converstations can have a negative effect on openess and moral of the employees. At a minimum, I believe the employer should let the employee know that he or she is being taped and get the employee's consent to being taped on actual tape.

Generally, I think it is a bad idea to let one case determine the entire company policy regarding taping. Even if this employee was taped, he or she could go to the EEOC,and could make up some story to explain it all away.

Good Luck!!

sandyq

Thank you for your help. We would be taping with the consent of the employee, we certainly wouldn't want to lose the trust of our employees.

Steve McElfresh

Sandy,

Do you mean openly record with permission, or doing secretly?? If the former, I don't imagine there would be any problem. But you should definitely check with counsel to be sure, and to see what precautions might be necessary (e.g., I would make certain that the giving of permission one of the first items recorded). And then train your interviewers to handle this smoothly, as it needn't have an impact on the interview, but will if they are awkward about it.

If you mean to do so secretly, I suggest great caution. This is a state law issue, and you should definitely consult local counsel. E.g., here in California, my read is that it would be violate Penal Code 632 (i.e., potentially result in criminal conviction) to record an apparently confidential conversation without the permission of both parties. This is not, however, true in all states

The legal issues, however, would end up being the least of your problems. Once it became clear (and eventually it would become clear) that your organization records on the sly, it would be an end to trust and communication from your employees.

Of course, none of this is legal advice, and you should seek same from someone qualified to give it.

Steve McElfresh, PhD
Principal
HR Futures

408.605.1870

Don D

Given the situation you cite, I don't see that having a tape of the exit interview would make a difference one way or another. Assuming the tape to have been legally made, and leaping forward to assume the conversation was open and each trusted the other, etc, I still see no value in having such a recording. It's not like having nothing about the sexual harassment captured on tape would preclude her making a later charge. Were you hoping maybe to be able to say, "Aha! But you didn't mention that in your exit interview."? And, yes I can imagine that an employee of the H.R.Department might not forewarn a harasser. H.R. employees are just people too. Maybe she did think it would "just go away".