Published in NEHRA News (8/31/2018)
Reality-TV-Star-Turned-White-House-Staffer Omarosa Manigault Newman recently grabbed headlines with her tell-all book about her short but dramatic tenure in the West Wing. Some of the most eyebrow-raising revelations came from the secret audio recordings she made of Chief of Staff John Kelly firing her in the Situation Room and of President Trump telling her, in the Oval Office, that he didn’t know she had been let go. Omarosa told Chuck Todd, of NBC’s “Meet The Press,” why she made the recordings: “If I didn’t have these recordings, no one in America would believe me. No one. So, I protected myself, and I’m going to tell you I’m so glad I did.”
But it’s not just high-profile employees like Omarosa who are making secret audio recordings these days. With the popularity of smartphones, almost everyone has ready access to the technology necessary to make secret audio recordings at work. And by some accounts, the practice is becoming more commonplace as a means to try to document allegedly discriminatory statements, harassment or other workplace misconduct. But employees and employers in Massachusetts should think twice before pressing the “record” button.
The Bay State’s laws regarding secret audio recordings are among the strictest in the country. The Massachusetts Wiretap Statute, G.L. ch. 272, sec. 99, makes it a crime, punishable by up to five years in prison or a fine of up to $10,000, to make an audio recording of someone without their knowledge. This is a so-called “two-party consent” law, meaning that both parties to the conversation must be aware of, and consent to the recording. New Hampshire also has a “two-party consent” law, RSA 570-A:2. Other jurisdictions, like New York and the District of Columbia have so-called “one party consent” laws, which permit audio recordings as long as at least one party to the conversation knows that the recording is being made. (While Omarosa may not have violated D.C. law by making the recordings, it’s an open question as to whether she broke Federal law by making a recording within the secure Situation Room.)
Illegality aside, there are other reasons why secret recordings in the workplace may not be a good idea. As noted in a recent story on NPR, when people start secretly recording each other in the workplace, it creates a culture of distrust that can seriously harm morale. When people are afraid that they’re being recorded and that their words might be used against them later, communications are hampered, and that makes it harder to get work done. A better course would be for companies to try to foster cultures where discrimination, harassment and other misconduct are not tolerated, and where complaints are taken seriously and investigated promptly and thoroughly. Employment counsel can assist employers in developing policies and practices to help achieve these goals.