Getting pulled into a meeting with your supervisor and someone from Human Resources can be intimidating, especially if you don’t have a union representative present or someone looking out for your interests attending the meeting with you. To level the playing field, you may consider secretly recording the meeting. After all, it’s super easy to do. Just open the voice recorder app on your phone, tap record, and tuck it away in your pocket as you head into the meeting. Not so fast. Before you tap the record button, you may want to consider the risks often outweigh the benefits.
Am I legally allowed to record meetings with HR?
It depends. In one-party consent states, like Texas, it’s legal to record conversations in two situations: (1) when the person recording is also a party to the conversation, and (2) the person recording the meeting has been given consent or permission to record before you start recording. If you’re silent throughout the entire meeting and HR has no idea that you’re recording, then that would likely violate Texas law and you could be prosecuted (yup, criminally) for secretly recording the meeting. In fact, in Texas, making secret recordings like that is a second-degree felony that could land you in prison for up to 20 years.
Different rules (and consequences) may apply if the meeting is taking place by Zoom, Teams, or WebEx and with attendees who are physically located in other states. Other states often require prior knowledge and consent of all participants before a meeting can be lawfully recorded.
Even if it’s done legally, it might still violate your employer’s work rules, handbook and/or policies.
Just because it may be legal to record meetings with HR, doesn’t mean that it’s not otherwise prohibited. Many employers maintain personnel policies or work rules that ban employees from recording in the workplace. If recording conversations with HR is a violation of your employer’s policies then it may create a legitimate reason for your employer to discipline or fire you.
I know what you’re thinking: “So what. I’m recording my termination meeting, why would I care if I violated their recording policy? I’m being fired anyway.” Well, you should care if you suspect that your firing is illegal and want to take legal action. Here’s why: if they didn’t have a legitimate, lawful reason to get rid of you before the meeting, you just gave them a legitimate reason to fire you if they realize that you were recording. And, even if they don’t realize that you’re recording them during the meeting, it will come out during the discovery phase of your lawsuit. Once it comes out, your employer can (and most likely will) raise a defense to your wrongful termination claim that lets them escape liability entirely. With this defense, they can argue that, independent of any illegal intentions, they would have terminated you anyway for secretly recording them. So even if you’re being fired, it’s still smart to comply with your employer’s policies and not record if prohibited.
Will it even help me with my case?
You may be surprised, but secret recordings can do more harm than good. Some juries are suspicious of and even hostile to employees who record work meetings without everyone’s knowledge or consent. This hostility won’t bode well if a jury is responsible for deciding whether your employer violated the law. They may see you as being unreasonable or unprofessional for secretly recording and hold that against you when deciding your case.
Can’t I just delete it then?
That’s not a good idea. If you’ve decided to take legal action, then you’re required to safeguard any and all evidence (including recordings) related to your employment and the claims you intend to file or already have filed. Deleting recordings or otherwise destroying evidence is called spoliation and could result in a judge issuing sanctions against you. Some of the most severe sanctions that I’ve seen judges hand out include dismissing an entire case, instructing the jury that it can assume the evidence was destroyed because it was harmful to the case, or even requiring parties to pay steep fines or penalties.
Are there any workarounds?
If you decide that the juice isn’t worth the squeeze, there are still other ways you can create a record of important conversations or meetings that took place at work. As long as it doesn’t violate any workplace policies, I often advise my clients who’ve been dragged into meetings to send a follow-up email to participants meeting once it is over. The follow up email is designed to recap key information that was shared during the meeting, and get the recipients to confirm that what’s stated in the email is exactly what happened during the meeting. Often, these emails end with an invitation to correct anything if it has been misstated. The email is then sent with a blind copy to my clients’ personal email address so they can access a copy, even after they’ve left the company. This approach creates a paper trail of what transpired, and when done correctly, can be just as effective as recordings.