Before You Secretly Record Your Shady Boss, Keep These 3 Things In Mind

A secret audio recording can be key to proving harassment or discrimination – if it's done legally.

In a memorable episode of HBO’s “Succession,” cousin Greg, the bumbling young relative who works for the family media empire, Waystar Royco, shows that he is just as calculating as the rest of the Roy family when he starts recording the wrongdoing he is witnessing on the job.

On HBO's "Succession," Greg (Nicholas Braun, right) tapes Tom (Matthew Macfadyen) to gather incriminating evidence on him. If you're attempting to do the same as an employee, you need to consider your jurisdiction.
Graeme Hunter/HBO
On HBO's "Succession," Greg (Nicholas Braun, right) tapes Tom (Matthew Macfadyen) to gather incriminating evidence on him. If you're attempting to do the same as an employee, you need to consider your jurisdiction.

Roy family son-in-law Tom had previously ordered Greg to destroy incriminating papers that proved there had been sexual harassment on the company’s cruise ships for decades that management knew about and failed to act upon. Greg kept a backup paper copy (smart), and confessed to Tom about it (less smart).

A magazine exposé sparks an investigation into the cruise scandal, and Tom wants visual proof that Greg’s backup copy is going to be destroyed, or else he will alert founder Logan Roy about it.

After being bullied into showing where he kept the backup, Greg doesn’t stop the evidence from being burned “off premises,” but he does use his phone to record audio of Tom in the act. “Oh lord of malfeasance, give us your divine blessing,” Tom states to an unwitting audience as he sets fire to the work documents.

Being pressured by your boss into staying quiet about crimes may not be a typical workplace conundrum. But employees in real-life offices may be wondering how, if needed, to go about catching their no-good boss in the act of wrongdoing. Here are three big tips to keep in mind before you do:

1) Where you tape can make your secret audio recording illegal

Before you hit record, look up your local laws on recording an audio conversation. Just because you can secretly record someone does not mean you have the right to do so. Several states, including Florida, California, Connecticut and Maryland, require the consent of both parties to make legal a recording of a conversation.

Luckily for Greg, his fictional taping occurred in New York, a state that only requires one person’s consent to record. “If one-party taping is allowed, then the recording can be a smoking gun, and be invaluable to catch people after they lie and deny the misconduct they admitted to on tape,” said Tom Devine, the legal director at the Washington, D.C.-based Government Accountability Project.

Devine said knowing the legality of taping laws is a prerequisite for a whistleblower’s case: “That allows us to know how actively we can use the evidence.”

But that’s not the only location concern an employee needs to consider. What about if one participant is calling in from a two-party consent state?

Donna Ballman, a Florida-based employment attorney said an audio recording can be “very powerful and very valuable,” but that it can be a legal gray area with work-related situations like telephone conferences. “Maybe you’re in a one-party consent state, but maybe the person on the other end is in an all-party consent state,” which makes it legally riskier.

You should also make sure that your company policy does not have a clause against secret recordings that can potentially be used against you. In 2018, the National Labor Relations Board’s general counsel sent out a memo that a workplace’s no-recording rule itself is not necessarily a violation of federal law.

In the “Succession” episode, one additional legal complication facing Greg is that he secretly records Tom’s misdeeds “off premises,” away from Waystar Royco in a private residence. “In the workplace, there’s a good argument that there’s no expectation of privacy,” Ballman said. “In your home, it’s different. In your home, there’s an expectation of privacy.”

2) Be careful of what you actually tape

You can’t keep your phone in record mode whenever, wherever you want at work. You need to be discerning. It is usually illegal to record a conversation to which you are not a party of or can’t overhear.

“If you’re just sitting there listening and you’re not part of the conversation, you’re recording the people in the cubicle next to you ― that’s illegal. You could go to jail for that,” Ballman said.

3) A phone recording is not your only option for record-keeping

If phone recording seems too risky, other ways are available to gather credible evidence on your manager’s bad behavior. When it is your word against your boss’, a contemporaneous record of what you experienced before a lawsuit ever is filed can be invaluable.

“It’s hard to match a personal confession, but other forms of proof can be sufficiently effective and safer substitutes for illegal taping,” Devine said.

Take the example of one Boeing whistleblower, who told HuffPost he kept track of who was present and who said what in written records. “If I had a face-to-face with my manager, I would go back to my desk and send myself an email saying everything that was discussed,” he said.

“Notes are very powerful if they are contemporaneous,” Ballman said. “Have a little notebook in your purse or your briefcase, or your jacket pocket that you can take notes in that they can’t take away if you’re fired. Courts and juries rely a lot on those things.”

If you’re wondering how to take detailed notes, take it from fired FBI director James Comey, who kept contemporaneous notes of interactions he had with his boss at the time, President Donald Trump. What bolstered Comey’s credibility is that he would write the notes immediately after his conversations with Trump, when his memory was fresh. “What follows are notes I typed in the vehicle immediately upon exiting Trump Tower on 1/6/17,” he wrote in one memo. It also helped that he included details of who and what was in the room, and when meetings took place.

How you gather evidence is as important as what you gather

It remains to be seen whether Greg’s audio recordings will be useable evidence and protection for the character later on. Greg has made some major missteps in safeguarding his evidence.

By keeping the backup documents in a work folder labeled obviously “secret,” Greg is going against the advice of “The Corporate Whistleblower’s Survival Guide,” which was co-written by Devine.

“Avoid inadvertently leaving sensitive information where it can easily be found,” the guide says. “Employers have been known to go through whistleblowers’ desks, confiscate computer files, and even open personal mail they receive at the office.”

But by managing to preserve a few sheets of copied evidence from being burned by Tom, Greg has proof that could be helpful to him later on. When in doubt about the risk you are taking on, consult a lawyer as early as possible ― one who shares the objectives you have in mind for the evidence, Devine recommends. “This is a life’s crossroads decision. A person who chooses to challenge organizational abuses of power, life will never be the same if they’re exposed,” Devine said.

Consult with someone who does employee-side employment law, Ballman advises.

Corporate and government whistleblowers are living examples of the success of workers using audio recordings to spur outrage and change. But the most successful ones all had legal help to make sure they were gathering evidence lawfully. On the fictional world of “Succession,” Greg is seemingly alone, unmoored from his family that would quickly sell him out as the cruise scandal’s scapegoat if given the opportunity. If he wants to actually be successful at getting away with committing the truth, he should get a good whistleblower lawyer on his side, stat.

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