Taking Evidence From The Workplace

A common question employees have is whether they can take copies of workplace documents home, for the purpose of documenting discriminatory treatment or other unfair or illegal practices.  This may involve making copies or, commonly, forwarding emails or other computer files to a personal email address.  Sometimes, an employee may want to audiotape conversations in the workplace (secretly or otherwise), or make videos of things in the workplace that might violate law or policies.

It’s a fact that damning evidence – emails, reports, memos and the like – sometimes disappears once the employer knows a legitimate claim is coming.  Documents may be altered.  Signatures may appear where there were none. Checkboxes that were empty may have checks added. Electronic time records may be “edited.”  Handwritten notes in the margins may be added or whited out.  So some protection against the disappearance of key evidence may be in order.  The question then, of course, is how to maximize your ability to preserve the evidence while minimizing the risks to you of doing so.  This article explores three common tools used by employees: the copying of documents, the use of audiotape to capture conversations, and the use of videotape.

Let’s take them in order.

Taking Or Forwarding Documents

Whether taking documents home poses a problem for you depends heavily on your employer’s policies (assuming there is any), on the custom or practice in the workplace, and on applicable laws, rules and regulations.

The first thing to consider are the documents you have in mind.   Do they contain confidential data about your employer’s business, such as formulas, customer lists, or trade secrets?  Do they contain confidential information about employees or the people your employer deals with, such as medical information, Social Security numbers, or credit data?  Do they contain information whose handling is governed by state or federal law (i.e., medical information, or classified data)?

A second thing to consider is whether your employer has a policy or practice on the subject.  Some employers do; many do not.  Even if your employer does, it may be a policy that isn’t enforced.  Maybe all your bosses and coworkers take originals or copies home, temporarily or permanently.  In other words, it is quite possible many employees, for their own protection whether bringing a claim or not, routinely keep copies of important documents.  It might be quite reasonable to do so, for many legitimate reasons.   Also, even if your employer has a written confidentiality policy, it may also be the case that actual office practices differ sharply from what the written policies dictate.  Policies and procedures may have been written years ago, perhaps by a consultant who had no idea how things are done.  Sometimes companies even adopt generic employee policies and handbooks they find on the Internet, and do not adapt them properly.  Regardless, if making copies of documents and taking them for a home file is the norm in your office, that can be a factor in deciding whether you can or should take documents home in a particular situation.

By the way, I am sometimes asked if forwarding emails by “bcc” or blind-copy is a good idea.  It is hard to answer that without a full portrait of the facts.  Keep in mind, however, that network administrators can easily retrieve evidence of “bcc” email forwards.  In that respect, it is easier for an employer to track forwarded emails than, for example, a printed copy of the same email that is simply carried home.

Ask your lawyer about the wisdom of removing documents.  Every case is different, and the risks you may face should be discussed in an attorney-client privileged setting, not in a column available to the public (and employers).

Audiotaping Workplace Conversations


Sometimes employees need more than documents.  They need proof of the things their bosses or coworkers are saying. Audiotaping conversations, while still uncommon, is being done with increasing frequency.  To be sure, there is nothing like hearing the words straight from the discriminator’s own mouth.  And with microrecorders now readily available in all sorts of shapes and sizes – stitched into hats, or men’s ties, or built into pens or other common office products – clandestine taping has never been easier.

But it is legal?

The answer to that depends on what state you’re in, and whether your target has a reasonable expectation of privacy. Some states, like Florida, make it a crime to tape another person without their consent.  Other states have no such prohibition.  Many states that prohibit taping allow it, however, if the person being taped cannot reasonably expect the communication to be private.  For example, you might be at a political rally and hold up a tape recorder to capture the politician’s speech.  In that setting – a public forum – no one could claim a violation of the law.  But absent such a public event, the law is murky.  One-on-one conversations clearly pose risks, if you’re taping without express consent.  Even group meetings pose risks, absent express consent.  Putting a recorder on the table in plain view might help.  But it might not.  The ideal situation would be to seek permission to tape before starting the recording, and then to start the tape and immediately announce on the tape that permission was requested and received.

Videotaping Bosses, Coworkers And The Workplace

These days, the ability even to record full-color-with-audio in a clandestine way is fairly easy.  Here’s a great example. Who would suspect they’re being videotaped by this guy?

Video cameras with stunning graphics qualities can now be squeezed into just about anything that can be worn, carried or set on a desk.  Their ability to generate audio is just as good.  You might have in mind the videotaping of a hazardous condition, or to show employees breaking rules without consequence.  Maybe your goal is to bring a matter to a supervisor’s attention, to create proof for your employer’s corporate compliance office, or to create a record for a federal workplace agency like the EEOC or OSHA.

Videotaping without consent carries some of the same hazards as audiotaping without consent.  This is especially true of a videorecorder that is also capturing sound.  I recommend you consider all the same factors as outlined above for audiotaping.   It would be impossible for me to give a set of reliable ground rules that will always work in every situation.  Ask if you’re not sure.  Each situation is different and has a different risk/reward analysis.  One possible difference with video, though, is that you may be on safer ground if you’re videotaping activities or situations clearly visible to the general public.  Thus if you wish to tape a hazardous condition on company property that can be clearly viewed from a public sidewalk or road, you may have less risk than if the subject of your video is inside a workplace, for example.

Conclusion

Again, every situation is different, and the differences matter.  When in doubt, ask your lawyer before audiotaping or videotaping workplace situations.



Categories: Complaints & Documentation

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