I often get asked by potential clients if it's okay for them to record conversations at work to help prove their case. In Texas, recording is legal so long as one party to the conversation knows it's being recorded. That means as long as you are a party to the conversation you can record it without telling others. But before you test drive the latest iPhone recorder app at work, there are 4 things you should remember:
1. You Could Be Fired. If you are caught you could be terminated, and there will likely be little an attorney can do for you. Texas is an employment-at-will state. There are exceptions of course, but the bottom line is you need to balance the potential reward against a very real risk.
2. You Are Being Recorded. You would be surprised how many times people bring me workplace recordings that hurt their case because of what they say on the recording. And here's the kicker, you can't just decide it didn't help and delete it, which leads to tip #3.
3. Don't Delete Any Part Of The Recording. If you delete any part of the recording or attempt to edit it, the recording might never be admitted into evidence in the case, and worse, you will subject yourself to a spoliation of evidence charge, meaning the jury may be instructed they can presume what you deleted hurt your case and that is why you deleted it. That's not something you want the judge instructing the jury.
4. Record What People Will Likely Deny Later. If it's a sexual harassment case, record the harasser making inappropriate sexual remarks or others admitting they were sexually harassed by the same harasser. If it's a discrimination case, record the discriminatory remarks made by your supervisor. Record termination meetings. But remember what you record that doesn't help you will often be used against you.
A good recording can make a case, but most recordings I hear from potential clients don't help. If you are going to record, follow the tips above and you may be one of the few with a recording that proves a case. GSF