Question to Ask the Workplace Doctors about firing for secretly recording:
An employee is being investigated for two things, first for secretly putting a tape recorder in my office and secondly for taping a conversation to which he was a party but didn’t have permission to tape it. During the investigation he admitted that he did bring in the recorder. As to why, he explained that he felt that he needed to. He has two warnings in his file already. Do you think we can fire him for that or what action should be taken?
Although you can probably fire someone for anything, unless you have a specific contract with the employee that prohibits it, you will need to justify that action or any other action you decide to take. First consider if there is a rule or policy that tells employees they can’t secretly record people. If there is, you have something to use right there. If there isn’t, you will need to show why putting the recording device in an office is a serious action. The main way to do that is to show how harmful it is to the work. These are the primary ways:
1. It causes people to feel they can’t speak honestly and openly for fear their words will be used or misused against them, without them even being aware of the possibility. This hampers communication and prevents open and honest discussion.
2. It creates a feeling of mistrust and harms the group as a whole. Rarely are such things kept a complete secret, so people start wondering where the recorder is THIS time. My thought always is, if he was able to secretly record in one room, who is to say he is not recording in break rooms, with clients, in bathrooms, in the offices of specific people, just to target them?
3. There is a potential liability concern, especially if an employee who is recorded wants to sue the company for not protecting their privacy.
4. Since the recorder can’t differentiate between personal conversation and the targeted conversation, there is a likelihood that personal conversations and business proprietary conversation will be recorded.
5. The concept of eavesdropping applies. If it wouldn’t be appropriate for an employee to hide in a closet and listen, it’s not appropriate to record without the knowledge and approval of everyone involved.
If you are considering firing someone for secretly recording conversations you should be prepared to explain why the offense was so bad you can no longer have the employee on-site. The most obvious reason is because you can never trust them again and everyone will wonder if they are being recorded. However, if the employee were to sincerely apologize and swear it won’t happen again, perhaps you could have a different view. Consider other sanctions such as a suspension. That would put him in a position to lose money, which would be a serious reminder of how bad it would be if he lost his job completely. A suspension of say, five or less days, would send a serious message but would not cripple him financially. If your company has an HR section, they might be able to advise you about the best approach. So, the short answer to your question is that, yes, you can fire someone for secretly recording office conversations. Whether you want to fire them or merely warn them or sanction them in another way, is the big question.Best wishes to you! If you have the time and wish to do so, let us know what happens.
Follow-up Thanks so much for the advice. We are following progressive steps of discipline in addition to providing training to fill the training gap. I believe that his action warranted suspension . This was supported by the Board . Thanks again for the advice. It was useful when we were analyzing our findings.
Tina Lewis Rowe