What’s got us all worked up this week? Recording conversations in the workplace of course! While it can be tempting to have proof of certain conversations to support one’s case in the context of employment law, especially when it comes to claims of harassment or toxic workplaces, taking this step is not always beneficial. Listen as Jill and Dana discuss rules, situational examples, and consequences of recording spoken exchanges at work.

Full transcript below:

Male: This podcast is produced by Nelligan Law.

Jill: Welcome to All Worked Up, the podcast where two employment lawyers break down real-life workplace issues that affect real people. And we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers.

Welcome to all worked up, I’m Jill. 

Dana: I’m Dana. 

Jill: Dana, what’s got you all worked up? 

Dana: You know what’s got me all worked up today? [Cross talking 00:00:31] because how many times has it happened that you’ve been sitting in on an intake – I’m going to get there, I’m going to get to the point of what’s got me all worked up, and someone says, yeah, and then my boss said this. I recorded it, do you want to hear it? Why are you laughing? Because it happens all the time. 

Jill: It happens all the time. 

Dana: All the time. And I can’t stand it. Please, please don’t give me that recording. Please stop recording. [Cross talking 00:00:57] what’s got us all worked up is recording conversations or whatever and the recording in the workplace. Because it happens all the time. 

So fund fact number 1. You are allowed to record a conversation that you are a part of without telling the other person that you are doing so. Fun fact number 2, if you record a conversation that you’re not a part of and don’t tell anyone, that’s illegal. It could be, I don’t know, criminal recording. I don’t know, criminal something. Don’t do that. [Unintelligible 00:01:30] don’t do that. I just left my tape recorder in the bathroom. It looks like — 

Jill: Just eavesdrop like the rest of us and go tell your work bestie. 

Dana: Yeah, record it in your brain. 

Jill: Need to record it. 

Dana: But not on a listening device. I actually – we’re not condoning eavesdropping, just as an aside. So you [unintelligible 00:01:48] my new diary. Which is – dear diary, today I eavesdropped and heard this. Anyway. 

Jill: [Call? 00:01:54] Dana immediately. 

Dana: So yeah, you can record a conversation that you are a part of and not tell the other person that you’re doing it. 

Jill: And we all have the ability to do so now thanks to our phones, right? And it’s really simple, you click record, you throw the phone in your bag or you have a – like near your computer or whatever. Should you do it, Dana? 

Dana: Well no, and there’s a couple of reasons why not. First, it doesn’t have the weight that you necessarily think it will have in a court when you knew that you were recording and the other person didn’t. Because you’re going to tailor your behaviour and what is said accordingly and you’re probably going to be perceived to be setting them up to a certain extent to say something problematic. Is what you mean? You’re planning to fire me? Yeah, I guess that’s kind of what I mean. Like you know, those types of — 

Jill: What is your opinion on this? What was it again? And what – could you tell me more about what you think about — 

Dana: And they were angry and yelling and I was so calm. Of course you were calm, because you knew that you were recording it for use at a later date. 

Jill: Yes. You know — 

Dana: So. 

Jill: — who hates recordings? Judges. Judges, people of a sort of a — 

Dana: Like these surreptitious recordings, for the most part. 

Jill: Yes. Yes. 

Dana: [Cross talking 00:03:17] recordings [cross talking 00:03:16]. 

Jill: It’s just not going to go over well. Like — 

Dana: It doesn’t have the weight that you think it will. Because of that, because you know and the other person doesn’t. It’s not fair. You’re not on even footing there. 

Another point is that it could be cause to terminate someone’s employment if you find out after the fact that they’ve just been surreptitiously recording people without telling them. And there is a case that found that – I don’t remember what it’s called – 

Jill: [Cross talking 00:03:45] 

Dana: — that was my dialing. Yeah, because it does impact the trust in a relationship if someone keeps recording conversations without telling people that they’re doing so. 

Jill: So, should the employers then be – like should this be a policy or like employers — 

Dana: They have to have a policy if they’re recording you. 

Jill: If they’re recording you, absolutely. Refer back to our podcast on monitoring employees’ electronic devices. But maybe there should be a note – like I feel like when employees come to us they feel very excited almost and proud that they caught their employer on a recording. Like, you I know what I mean? Like they just feel like the evidence is so strong. Like, oh and I recorded it, do you want to hear it? No. 

Dana: But the thing is too, once you’ve recorded it, if you’re going to sue you have to produce that. 

Jill: Exactly. 

Dana: That counts as a document under the rules of civil procedure and you have to produce it. So you can’t make a recording and then be like – I mean you don’t turn it over right away — 

Jill: [Unintelligible 00:04:51] rely on it, like — 

Dana: Like even if you’re not going to rely on it. If you have it, we know you’ve got it, we’re going to have to produce it. 

Jill: And what happens if you delete it? You start — 

Dana: Yeah, that’s not great, or tampering with it. 

Jill: Oh [ee? 00:05:04]. 

Dana: Well then you’ve deleted evidence, and it’s like, well why did you delete it? So — 

Jill: Obviously [cross talking 00:05:10] difference there that maybe there was something there that you didn’t want us to hear. Like it’s just — 

Dana: Once you’ve done it, keep it. 

Jill: Yeah, well sure. 

Dana: If you’re going to see a lawyer – like, if you’re at the legal stage yeah. 

Jill: But that’s a probably too. Like maybe something’s going to get captured that you didn’t want to get captured on that recording. I just never — 

Dana: Yeah, like a ghost. 

Jill: — really seen a scenario where it’s worked in our favour. Like I’ve got to say, like I have listened to these recordings sometimes, and if anything I’ve gotten to the end and been like, I don’t get it. Like, I didn’t hear it. Like I didn’t hear the harassment. I didn’t hear what you wanted me to hear. It’s just never really worked in their favour. So why do people record? I think they feel that that’s the strongest evidence, right? So that if they get into this he said, she said, they have something to back that up. Often times if there’s harassment it can be subtle and that can be really difficult to describe, so yeah, I get it that like it’s easier – well, if people could just hear it. Like, if somebody could just hear how he or she says this to me they’ll get it. It just doesn’t seem to have that effect. 

Dana: Yeah, and it’s also, like, OK, yeah, my boss always yelled at me and I went into this meeting and I knew was going to get screamed at so I recorded it. That’s often, like when you get to – yeah, which I guess is like harassment or something. You wanted to – I don’t think I’ve ever had, as you say, one of those recordings that does have, like, horrible yelling or any of the things – I understand if you’re scared and you want to protect yourself. I get it. I get why people do it. It’s just once you know – once you’re aware that you’re recording and the other party isn’t, that automatically puts you on uneven playing field in terms of how you react and how you operate. 

And it shouldn’t for the other person. If they’re going to do anything wholly inappropriate they shouldn’t be doing it anyway. 

Jill: No, but you are sort of opening that door to be scrutinized a little bit. 

Dana: Yeah. And that is where you could maybe say, if you’re really worried about a conversation, I’m going to record this. What [cross talking 00:07:15] like the only [cross talking 00:07:16] like a support person you could ask, could I bring someone with me? I’m worried. And an employer doesn’t have to let you. But I’m going to – like, I don’t like the way this conversation’s going, I’m going to record it, then at least then everybody knows what’s happening and that wouldn’t be cause. Like that’s not going to be a surreptitious recording. You’re don’t have the argument that it’s not – that you weren’t on an equal playing field. 

Jill: Yeah, exactly. 

Dana: There’s no criminal element. You’re being open and honest about it, not that there would be if you’re a part of it anyway. But the concern then is, then well then they’re not going to do anything that bad and then I don’t have the evidence that I wanted. Well, we’re often in he said, she said, she said, she said, he said, he said situations in employment law, and courts can make an assessment based on your evidence. Like it’s not – there’s not no evidence because there’s no recording. What you say, what you tell people is evidence. 

Jill: Exactly. 

Dana: And you can be tested on that. Cross examined and — 

Jill: There’s ways that we can test that. Liability, credibility. Now do you think an employee who’s reporting the employer, or sorry, any coworker or just reporting, do you think that the fact that they’re recording would impact their credibility if they were being — 

Dana: It could. 

Jill: — their evidence was being assessed. I think it would. Even subconsciously. 

Dana: Yeah. 

Jill: Like there’s just a part of me, as soon as somebody says, I recorded I was like, what? 

Dana: You might not trust it. 

Jill: I don’t know [cross talking 00:08:43] 

Dana: [Cross talking 00:08:43] too, are you recording us now. That’s always what I wonder. 

Jill: I really think I don’t trust you. 

Dana: God knows we love a recording. But. 

Jill: Yeah. I do. 

Dana: And recordings otherwise, like not surreptitious recordings, but say your workplace – OK, you know, back up to what they are recording or electronic surveillance whatever, if you’re in a workplace that has cameras, that might be perfect to get the evidence of, oh, this is where they hit me. Like we’re not saying recordings from the workplace generally are not helpful. They can be very helpful. It’s the surreptitious – like where you are recording someone and then want to rely on that. 

Jill: OK, so I’m just going to jump in and I would just tell an employee who thinks that they’re going into a meeting, maybe – I don’t know if you’d agree that – take notes — 

Dana: Yeah. 

Jill: — as soon as you OK, you go into a meeting and you think that the employer may be yelling at you and maybe you decide you want to have the recording or not. Maybe you don’t. If something happens in that meeting, as soon as you leave, go back to your desk, write yourself an email and jot it all down. Just word vomit it. And then email it to a private email account. OK? Done. You’ve got good evidence – that’s really strong evidence, right? Like you made notes as soon as you were done the call. 

Dana: Don’t include confidential information in there. Client X said – you know, [cross talking 00:10:04] but like about the actual particulars of the interaction. 

Jill: The tone, the language that was used, you know, because that could be — 

Dana: If you can remember specific quotes that you were very upset by or that were troubling or if you were shaking or whatever, those types of things. 

Jill: Because I think people will also make those recordings because they can often forget those types of — like you’re shocked — 

Dana: The details. 

Jill: — you’re shocked when you’re being yelled at, and then you leave and you go home and you tell your spouse or a family member and you just kind of – I don’t really remember what they said, I was just really, really upset, I was really hurt, I was really embarrassed. Like, we have said this so many times in the podcast, make your notes, notes, notes, so as soon as something like that happens, that would be good evidence. 

Dana: Yeah, well one of those court of appeal cases, too, I think it was – I think it was [unintelligible 00:10:47] where the woman actually left the meeting and went and sent herself an email about it and copied her spouse or something. Like it was detailed notes right after the fact, and that helped bolster credibility — 

Jill: It was reliable. Yeah, absolutely. 

Dana: Yeah, because it’s like, OK, at the time you made these notes, it’s not after the fact, it’s not like – and you can see the email stamp, right? You see the time. 

Jill: Yeah. 

Dana: The employer also has a copy of that in their files so if you’re like, well, say your employment is terminated and you’re like, well I only have access to my Gmail where I now have this. 

Jill: [Unintelligible 00:11:15]. 

Dana: The employer can also compare and say, OK, well it was received in your Gmail at, like, 1:02, OK, yeah it was sent from our servers at 1:01 or whatever. 

Jill: Exactly. So I think that’s your best evidence, instead of going into every meeting with your recording device. 

Dana: Yeah, the number of times that people think, this is wonderful, I’ve got them, I nabbed them. And I’m always, like, oof. And also do you want me to listen to an hour and a half meeting? I’ve got to charge you for that, man. [Cross talking 00:11:45] 

Jill: [Cross talking 00:11:45] super helpful. 

Dana: And even if you direct me to like, well if you listen at this point it’s like, oh but where’s the context then. 

Jill: It’s just – it falls flat. You just don’t hear it the way that they do. And so I think actually notes can be so much more helpful in describing the context and then explaining it after the fact. 

Dana: Yeah. 

Jill: What’s our overall opinion on whether you should record in the workplace? 

Dana: In almost every situation, no. 

Jill: No. So don’t do it. 

Dana: Yeah, like it’s just not – it’s just not going to be that sort of smoking gun that you think it will be. 

Jill: Yeah, all right. Well that’s got us worked up today. Thanks so much for listening guys. Don’t forget to like, comment, subscribe and share the podcast. See you next week. Bye. 

Dana: Bye. 

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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