{"id":8224,"date":"2020-07-20T12:26:37","date_gmt":"2020-07-20T16:26:37","guid":{"rendered":"http:\/\/localhost:10028\/uncategorized\/should-i-secretly-record-workplace-harassment-incidents\/"},"modified":"2024-05-02T14:22:23","modified_gmt":"2024-05-02T18:22:23","slug":"should-i-secretly-record-workplace-harassment-incidents","status":"publish","type":"post","link":"https:\/\/napolilaw.lemonadestand.org\/en\/article\/should-i-secretly-record-workplace-harassment-incidents\/","title":{"rendered":"Should I Secretly Record Workplace Harassment Incidents?"},"content":{"rendered":"

Generally, a picture, or a recording or video, is worth a thousand words.<\/p>\n

That being said, surreptitious recordings sometimes cause much more trouble than they prevent.<\/p>\n

This issue comes up a lot. Sadly, over 80 percent<\/a><\/u> of women, and a sizeable percentage of men, have experienced workplace sexual harassment.<\/p>\n

And, claimants have the burden of proof to establish unlawful harassment.<\/p>\n

The stakes are high. Compensation in a sexual harassment<\/a> action usually includes money for economic losses, such as lost wages, and noneconomic losses, such as pain and suffering.<\/p>\n

Secret Recordings and the Types of Sexual Harassment<\/h2>\n

Unlawful retaliation <\/strong>is the most common type of sexual harassment charge.<\/p>\n

If employees take protected actions, it is illegal to take adverse action.<\/p>\n

In this context, protected activity includes reporting harassment, serving as a witness in an investigation, and encouraging others to report harassment.<\/p>\n

Adverse action could be anything from sidelining to termination.<\/p>\n

Recording such incidents usually adds little to a sexual harassment case. The adverse action itself is a matter of record.<\/p>\n

And, to establish a prima facie claim, a New York sexual harassment lawyer<\/a><\/u> need only show temporal proximity (e.g.<\/em> protected activity in November and adverse action in December).<\/p>\n

Quid pro quo<\/strong> exchanges are unfortunately quite common as well. Frequently, the actor already has a poor reputation in the office. Sometimes, in fact, the victim has been the subject of quid pro quo harassment.<\/p>\n

Recording these incidents might be a good idea.<\/p>\n

A recording prevents these matters from becoming a \u201che said, she said\u201d exchange which a jury could resolve in either direction.<\/p>\n

But before you cue up your smartphone\u2019s recording feature, be sure you keep reading.<\/p>\n

A hostile environment <\/strong>is an atmosphere which is so toxic, people are unable to effectively do their jobs. Examples include offensive computer wallpaper, tasteless jokes, demeaning comments, and offensive music.<\/p>\n

Once again, a recording might be effective. But it\u2019s important to be aware of all the pros and cons.<\/p>\n

Wiretapping\/Recording Laws and Rules<\/h2>\n

In terms of state law<\/strong>, most jurisdictions, including New York, are single-party states.<\/p>\n

Only one person must give permission to record a conversation via video, audio, or any other method (i.e.<\/em> \u201cI give myself permission to record this conversation\u201d). The other party\u2019s knowledge or consent is not required.<\/p>\n

Some jurisdictions, including Pennsylvania, are two-party states.<\/p>\n

Both parties must affirmatively give consent. Those \u201cthis call may be recorded for quality purposes\u201d disclaimers are highly misleading but legally sufficient.<\/p>\n

Note that, even in single-party states, at least one party must consent. So, eavesdropping is almost always illegal.<\/p>\n

The federal wiretapping law<\/strong> sometimes comes into play as well. However, 18 U.S.C. \u00a7 2511 is rather subjective. It only applies if the other party had a reasonable expectation of privacy. That could mean almost anything.<\/p>\n

Finally, many employers have rules against secret recordings.<\/p>\n

Generally, these recordings are very bad for morale. Workers do not want managers hacking their webcams, and managers do not want workers recording their conversations.<\/p>\n

Handbook rules<\/strong> normally trump any state or federal laws. If the handbook says it\u2019s wrong, it\u2019s wrong.<\/p>\n

Effect of Surreptitious Recording<\/h2>\n

Many recordings are not the \u201csmoking guns\u201d that claimants believe they are. In fact, many times, the opposite is true.<\/p>\n

For example, if the other person asks, \u201care you recording this\u201d and you say \u201cno\u201d or give an evasive response, your credibility suffers. If you are on tape making a false statement, anything else you claim is suspect.<\/p>\n

The same thing applies to edited video or audio.<\/p>\n

Tech-savvy jurors are not stupid. They can tell when audio or video footage has been altered.<\/p>\n

You might have edited the recording for quality purposes, but many jurors are not very trusting.<\/p>\n

Other documents, such as screenshots or copies of emails, are often much more compelling.<\/p>\n

And, they are legal to harvest. In fact, claimants have a legal duty to preserve any physical evidence which substantiates or undermines their claims.<\/p>\n

Written and dated diaries are good as well.<\/p>\n

Secretly recording workplace conversations might seem like a good idea.<\/p>\n

But there are a number of ways this approach can backfire. For a free consultation with an experienced sexual harassment lawyer<\/a><\/u>, contact Napoli Shkolnik .<\/p>\n","protected":false},"excerpt":{"rendered":"

Generally, a picture, or a recording or video, is worth a thousand words. That being said, surreptitious recordings sometimes cause much more trouble than they prevent. This issue comes up…<\/p>\n","protected":false},"author":3,"featured_media":8225,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"footnotes":""},"categories":[794],"tags":[817,818,945,947,964,1029],"class_list":["post-8224","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-sexual-harassment","tag-employment-law","tag-sexual-harassment-lawyer","tag-civil-rights","tag-sexual-abuse","tag-personal-injury","tag-metoo"],"acf":[],"page_builder_type":"gutenberg","gutenberg_data":[],"_links":{"self":[{"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/posts\/8224","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/comments?post=8224"}],"version-history":[{"count":1,"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/posts\/8224\/revisions"}],"predecessor-version":[{"id":17672,"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/posts\/8224\/revisions\/17672"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/media\/8225"}],"wp:attachment":[{"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/media?parent=8224"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/categories?post=8224"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/napolilaw.lemonadestand.org\/en\/wp-json\/wp\/v2\/tags?post=8224"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}