With the widespread availability of audio and video recording using smart phones, some employees record their conversations at work, often out of fear their employer will not accurately recall the discussions. Such recordings are legal (i.e. not criminal) if the recording party is a participant in the conversation. However, most people consider it inappropriate to record conversations without consent of the other party. Secret recordings can also be abused by the recording party to “set up” the other party. Are such secret recordings acceptable conduct in the modern workplace?
In a recent decision, Shalagin v. Mercer Celgar Limited Partnership, the plaintiff Mr. Shalagin learned the hard way that just because you can do something, it does not mean you should. Although they originally terminated him without cause, the employer Mercer Celgar Limited Partnership (“Mercer”) alleged after-acquired cause when they learned that, amongst other things, Mr. Shalagin, who was a CPA employed as a senior financial advisor, had been secretly recording a wide range of conversations and meetings with other employees, including supervisors and human resources personnel.
The question the court asked is whether secret recordings breached the trust between the employer and the employee to the point where they undermined the employment relationship. In finding that it did in this instance, the court considered the following:
- The substance of the recordings, which included personal information of other employees;
- Shalagin’s position of responsibility and the conduct standards applicable to him as a CPA;
- Shalagin’s admission that he did not ask permission because he understood that it would make people uncomfortable and that at least some of the recorders were unethical according to his CPA Code of Conduct;
- The lack of a legitimate basis to make the recordings; and
- The sheer volume of the recordings and the several years over which they occurred.
The court also emphasized the importance of privacy concerns for those being recorded. The court noted that accepting Mr. Shalagin’s recordings as reasonable would encourage other employees who felt mistreated at work to start routinely secretly recording co-workers. This, in turn, would undermine trust and frank communication amongst co-workers.
It is worth noting that had Mr. Shalagin told others he was recording the conversations or only recorded key conversations after incidents where the participants had disagreed about what had been said in prior meetings, a court might not have found just cause.
With many businesses operating remotely, it may be easier and more tempting for employees (and employers) to record private conversations. This decision is a good reminder that excessive secret recordings by either employers or employees will be considered improper.
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