Law may protect employees who surreptitiously record their employers

Often, employees will surreptitiously record supervisors, managers, or coworkers in the workplace in an attempt to gather evidence to support a discrimination claim. Even if the employer has a “no recording” policy in effect, the employees may be protected by federal law from discipline. Determining which conduct is protected by law or subject to discipline can prevent litigation and save you time and money. Accordingly, this article presents some principles for you to consider for no-recording policies and employee discipline for violations.

Protected activity vs. subject to discipline

Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) prohibit retaliation against employees who have participated in any manner in an investigation, proceeding, or litigation under either law. Under the two federal statutes, the employees’ conduct is considered “protected activity” if they’re investigating a race, color, religion, sex, national origin, or age discrimination claim.

Both Title VII and the ADEA use broad statutory language in their prohibitions of retaliation against employees. From the broad language, at least one federal appeals court has concluded an employee could be justified in secretly tape-recording his supervisor while gathering data to support his age discrimination claim.