Tape Recording Supervisor's Alleged Cursing and "Mean" Behavior
Red
21 Posts
We have an employee who wants to move to a different shift. She says her boss is "mean" and curses at her. There are currently no openings on other shifts. She came in to the factory today with a tape recorderso she can get it (her bosses alleged verbal abuse) on tape. She says her attorney said it was perfectly OK to do. We will, of course, speak with the supervisor but, in the meantime, do we have to let her use the tape recorder?
Comments
1. Whether or not she can legally tape the supervisor without his knowledge depends on state law and if what she says is true about her attorney, it is probably ok in your state (in Texas only one party needs to consent to the conversation being taped.) However, she clearly cannot legally tape a conversation to which she is not a party.
2. Whether you can or should bar the tape recorder depends on a couple of factors. First, do you have a policy barring tape recorders. If so, it can be applied to this employee. Second, if you don't have a policy, and the employee refuses to go to work without the recorder, what do you do? If you fire or discipline her, she will claim it is in retalation because she complained about the supervisor (and don't worry, she will turn this into a sex, race, or age matter). Third, are there any compelling reasons to bar the taping that are more important to the business than possiblity of a retaliation claim -- for example, trade secrets and confidential business information being discussed.
3. If the supervisor and others know they are being taped (and I assume they will all know, because you will tell them), they should be able to keep their comments professional. That defeats the whole purpose of her tape recording.
My gut feeling would be to tell the employee that you would prefer it if she did not tape people in the workplace, that you will handle the investigation just like any other complaint and throughly address her concerns, but that if she insists on taping converstations in the workplace, you expect to recieve an unedited copy of all the tapes (and the company will pay the costs of copying). I would emphasize to the employee that you need to know all the facts in order to resolve her issues, and that if she has any notes or tapes that she already made, you need to see those so that you can make a fair resolution of her complaint.
I am sure there will be a lot of disagreement on this point, so I just want to give you one example from a case I handled. In this sexual harassment and retaliation case, the supervisor asked the employee if she was taping the conversation. The employee said yes and pulled out her tape recorder. The supervisor then asked the employee to turn it off, which she did. At her deposition, the employee testified that after he made her turn off the tape, he started yelling at her about filing a charge with the EEOC, told her he was going to get even with her, etc. The supervisor, of course, denied her claims. But both the supervisor and I truely wished that he had let her continue the taping. I have had many cases where employees taped supervisors, but I have rarely had any cases where the tapes were helpful to the employees, and I have had cases where the tapes helped the company!
Good Luck!
I would take what this employee is saying as a signal of a real problem in your firm. If she sincerely believes that by taping her conversations with the subject supervisor she will be able to provide you with proof of her complaint that the supervisor is harassing her, she probably can. I would think that you would want to know the real facts so you can take the appropriate corrective actions. Absent such proof, it's basically he said/she said.
This is not legal advice. You obviously should be consulting your firm's attorney without delay, not only about the taping questions, but also about the supervisor's alleged actions.
Susan Ruiz Branigan, LPI
Braniz Research
Slidell, LA