Why Recording Conversations Can Hurt Your Employment Discrimination Case
Is It Legal to Record Conversations in the Workplace in Pennsylvania?
Many employees face workplace discrimination and believe that secretly recording private conversations (also known as wiretapping) with an employer will be what wins their case. Unfortunately, recording workplace meetings and conversations with employers without the consent of all parties has profound consequences, including possible criminal charges and civil penalties. Additionally, illegally obtained evidence from these recordings will many times not be usable at trial and could jeopardize your case.
What are Pennsylvania's Wiretapping Laws?
Wiretapping is traditionally known as the connecting of a listening device to a telephone line in order to monitor and record a conversation. However, the prohibition on wiretapping also includes surreptitiously recording private in person conversations. Created over 40 years ago, Pennsylvania's Wiretapping and Electronic Surveillance Control Act (WESCA) places restrictions on one's ability to record a conversation with another person without his or her consent. Pennsylvania is considered a two-party consent state, meaning that in order to legally record a conversation, the consent of all parties to the conversation is required. While other states may only require the consent of one party to the conversation, Pennsylvania requires the consent of all persons in the conversation.
What is Wiretapping?
Section 5703 of WESCA states that a person is guilty of a felony of the third degree if one “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication.” In this case, intercept is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical or other device." In other words, you intercept an oral communication when you record, either through video or voice memo, a private conversation, whether it be over telephone or in person. If one of those parties to that conversation does not give their consent to be recorded, it is possible that section 5703 of WESCA has been violated.
What are the Penalities for Wiretapping?
Violating WESCA can result in both criminal and civil penalties. When one violates section 5703 of WESCA, they may be found guilty of a felony of the third degree. Not only can criminal charges be brought against you for recording a private conversation without consent, but the person that was improperly recorded can bring a civil lawsuit forward and sue you for monetary damages.
District Courts within the Third Circuit have stated that it is still a crime to record a private conversation without the consent of all parties, regardless of whether one of the people thinks that there is potential illegal discrimination. Additionally, anti-discrimination laws generally do not allow an employee that has been wronged to gather evidence of discrimination illegally. Recording an employer or other employee in secret is not considered a protected activity under anti-discrimination laws and will still be considered a punishable offense.
A violation of WESCA may not only get you in trouble with the law, but it may also damage your legitimate employment discrimination case. One of the primary defenses that an employer may use in a discrimination case is that there were other non-discriminatory reasons for terminating the employee. If an employer were to discover that you had been secretly recording private meetings or conversations, that action would qualify as a non-discriminatory reason that could subject you to termination, which could jeopardize your case.
Illegal Recording in the Workplace
The recordings that were obtained illegally are generally not going to be admissible during trial. Throughout the legal process, you and your attorney will have the opportunity to obtain evidence through various means, whether that be through the opposing party or items and documents that you have kept. The evidence that will be used to strengthen your case must be obtained legally for your attorney to properly utilize it. Recording a private conversation with your employer or boss without their consent is illegal and the evidence that you thought might help you is not usable. Further, in the discovery process of the case, your own attorney may have to disclose the illegal recording.
What are Legal Methods of Evidence Collection for an Employment Law Case?
There are a variety of other means in which you can successfully bring evidence to your attorney that will help your case without breaking the law.
Take Notes During Meetings
During all meetings at work, take notes. These are your own handwritten or typed notes that you can save and bring to your attorney. You can indicate what the meeting is about, when the meeting has occurred, who was present at the meeting, and who said what. Having those handwritten notes will allow your attorney to have a better understanding of your situation, without facing the consequences of illegally obtained evidence.
Write an Email
Following your meeting, you can send an email to the other person in that conversation, reiterate what was said in the meeting and ask the other party to the conversation to confirm that your understanding of what occurred in the meeting coincides with their understanding. By doing this, you have created a written record of the other person to this conversation, without having to record the conversation itself.
The Superior Court of Pennsylvania has determined that because emails and text messages are automatically recorded by the phone or email provider, and the sender typically understands that based on the type of communication, there is a lessened expectation of privacy. Therefore, conversations between coworkers or other managers over text message can be sent to your attorney for review. Similarly, it is ok to retain voicemail messages from others because they had no expectation of privacy when they left you such a recorded message.
The Dangers of Recording Conversations with Your Employer
Recording a private conversation between you and your employer can jeopardize your case. Not only can you face criminal and civil penalties, but the conversations recorded are probably not going to be admissible as evidence. Use alternative methods of capturing meeting information or conversations between coworkers. It will give your attorney the necessary information to help your case succeed.
Do You Feel You Have Been Discriminated at Work?
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