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Sexual-harassment victims’ dilemma: to record or not to record?

Wednesday, June 19, 2019

Audio-recording admissions of bad conduct can make a big difference in proving your case. But there are risks to recording.

Sexual-harassment victims’ dilemma: to record or not to record?

Photo by Mihai Surdu on Unsplash

Recordings can make a big difference in proving your case.

We generally encourage sexual-harassment victims to record conversations that constitute, and reports regarding, sexual harassment. An audio recording of the harassment can bolster the victim’s credibility significantly—and eliminate a “he said/she said” dispute about what really happened. In our experience representing sexual-harassment survivors, we can use recordings to leverage fair settlements by catching harassers in provable lies: when employers learn that we have a recording, they often prefer to resolve the case to avoid both the time and expense of litigation and to keep the harassment from becoming public.

One of our best examples of this strategy involved a client who recorded her harasser admitting he had physically assaulted her (and half-heartedly apologizing for it), and recorded herself reporting the assault to the boss, who did nothing. Both harasser and boss later, under oath, denied the harassment and report. Now they were not only liable for sexual harassment and retaliation, but also, potentially, on the hook for perjury.

And voilá! When we produced the recordings, they had little choice but to resolve the case to our client’s satisfaction.

Sexual-harassment victims’ dilemma: to record or not to record?

Photo by Dmitry Bayer on Unsplash

But there are risks to recording.

But there are risks to recording your conversations. Before recording, you need to know two things:

(1) whether your state is a single-party or all-party-consent state and

(2) whether your workplace’s policies forbid recording.

State laws vary regarding the legality of recording conversations: find out whether your state is a single-party or all-party consent state.

State law governs the legality of recording a conversation either in person or on the telephone. A majority of states, including Ohio, are single-party-consent states. Single-party-consent states allow any person participating in a conversation to record the conversation without the consent of the other people involved.

So if you are speaking with your co-worker in a single-party-consent state like Ohio, you may record the conversation without your co-worker’s knowledge or consent without violating state law. (You may not legally record conversations in which you are not participating without first obtaining the consent of someone who is participating.)

All-party-consent states, by contrast, require the consent of every individual participating before recording a conversation. Violating these laws can expose you to both criminal prosecution and civil litigation.

Recording telephone conversations requires extra precaution. Even if you are in a single-party-consent state, when you are on a call with someone located in an all-party consent state, you may violate that state’s law by recording the person located there. You should not record a phone conversation unless you are certain that the recording is legal.

Workplace policies vary regarding the permissibility of recording co-workers: find out whether your workplace forbids recording.

A recent decision from the National Labor Relations Board permits employers to implement no-recording rules for the workplace, so long as those rules do not violate employees’ rights to organize and collectively bargain. The new NLRB decision allows employers to limit employees’ right to record workplace conversations, even in single-party-consent states. (This decision upended an earlier, Obama-era decision that frowned on such policies.)

Therefore, before recording workplace conversations, you should review your employee handbook to determine if your employer has established a no-recording rule. Also, note that workplace recording rules may differ for private and public employers. If you are in doubt about whether you can record a conversation, you should seek the advice of an attorney before recording.

And needless to say, recording is risky because of the anger it can provoke if you are caught. We and our investigators can help advise you on some of the best technique, equipment, and apps to use, along with certain precautions, to ensure that doesn't happen.

While recordings are best, alternative methods to prove sexual harassment exist. If you are experiencing sexual harassment, you should document each occurrence, including the date, time, details of the harassment, and any witnesses present. Keeping such a contemporaneous log can really help prove your case.

In addition, you should generally report the harassment in writing to human-resources staff or your supervisor (keeping in mind that HR staff cannot generally be trusted), and seek an attorney’s guidance.

Are you a sexual-harassment victim? You are not alone. Call The Chandra Law Firm LLC today.

Our Cleveland-based boutique litigation firm provides large-firm skills, experience, and resources with small-firm personal attention to your case's unique needs and goals. It is why clients throughout Ohio and across the United States have turned to our attorneys to hold businesses and employers accountable for sexual harassment. And we have.

Our lawyers can send a strong message that you intend to seek the justice you deserve for the sexual harassment you face.

You can reach our firm, which serves clients throughout Ohio and the nation, by calling 216-578-1700 or by filling out our confidential, online contact form.

One of our intake specialists will take detailed information for attorney review. They are highly trained at obtaining the information needed to evaluate your case.

If you are preparing to complain about sexual harassment, we can help you do it in a way that helps you fight back—with evidence—if you face retaliation for doing so.

At Chandra Law, your case is our cause.®

Related Practice Areas
Employment DiscriminationEmployment RetaliationSexual HarassmentSex/gender Discrimination

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