By Mark F. Kluger and William H. Healey
Omarosa’d is the first verb we ever invented. We are proud and hope it starts trending, whatever that means. Definition of Omarosa’d please: being recorded by your employees.
Back in the olden days, when we started investigating sexual harassment cases, we often heard the complaining employee tell us a very compelling and seemingly sincere story about the behavior that triggered the investigation. We would then speak with an equally compelling alleged perpetrator (like the TV cops say) and hear that nothing we had previously been told actually happened, usually leaving us in our natural state: stumped.
All that changed with the advent of technology and the worldwide increase in arrogance. Now, we often see tangible evidence that either implicates or exonerates the accused corporate and individual defendants we represent. That evidence takes the form of text messages, emails, voicemails and the still mysteriously popular, electronically transmitted organ photo (at times seemingly digitally enhanced). The arrogance is that many suave users of this electronic means of Wooing often find themselves courting us to help them out. We are also increasingly encountering audio and video recordings of employer/employee interactions….the results of having been Omarosa’d. That’s how it’s used in a sentence.
We are often asked whether such secret recordings are legal and evidential. The answer in most cases: yes to both. Thirty eight states and the District of Columbia are “one-party” consent states, meaning that only one party to the conversation needs to consent to its recording, and that’s usually the one using the recording device. Only California, Pennsylvania, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire and Washington require both parties to consent. So if Professor Plum is coming on to his assistant, Miss Scarlet, in a New York Conservatory, and she is recording the event, the Professor better get a clue that he’s got a problem.
Employer tools for combating potential recording of workplace activity are limited and often ineffective. We are so used to everyone having a cell phone in hand that we likely don’t even notice it, meaning that the recording device is rarely even concealed. Last year, a federal appeals court in New York upheld a decision that struck down a Whole Foods policy that prohibited any workplace recording without management permission. The court said that the policy was too broad and employees had the right to record workplace conditions and health and safety concerns. Although courts have upheld employers’ ability to protect proprietary information from recording, a discussion between an employee and his supervisor that is potential evidence of discrimination, a hostile work environment or retaliation will not likely have any form of protection. Even if an employee violates a policy against recording, that still may not protect the employer from the content. Take the Tennessee federal court case of a few years ago. A black employee in a Memphis cotton gin didn’t think anyone would believe what his boss regularly said to him, so he used his cell phone to record his supervisor making racist comments. In one recording, the supervisor chastised the employee for using the ‘white’ drinking fountain and threatened to hang him for doing so. Even if the employee violated company policy in making that recording, it is doubtful any judge or jury would care.
One of our clients uses a creative solution. In front of the conference room sits a box with slots that each fits a cell phone. The box is labelled “Cell Phone Day Care” and employees must deposit the devices in the slots on the way into meetings. While the primary goal is to deter distraction, those meetings are less likely to be recorded. Let’s face it though, Cell Phone Day Care is not enough to stop an employee motivated to catch their employer making a controversial statement…such as, you know…like saying America was never really that great, or Truth isn’t truth. There are so many these days.
An effective way to prevent being Omarosa’d may be silence, extreme self-control and a white noise machine in every room. But our best advice is to approach any discussion with an employee, particularly those which you think might be difficult, by assuming that the conversation is being recorded. In today’s crazy world, you must use your head–don’t say anything that you would not want played back in front of a jury or, more importantly, your mother. And be careful not to be set up by being baited into saying something, by a naturally calculating or lawyered-up employee, that you will regret and later be forced to defend. DON’T GET YOURSELF OMAROSA‘D! #Omarosa’d.