When the employee is faced with a decision, for example, in a sexual harassment scenario to record a supervisor it’s a very difficult situation because except in situations where the supervisor is engaging in illegal conduct, which sexual harassment if it gets past a certain point, certainly could be assault. And it wouldn’t take much in a scenario for a threatening supervisor to commit a sexual assault by threatening to touch or by touching an employee in the workplace. The advice that I give to employees in that situation is if its gotten to a sever enough level even though its illegal to record, if we’re dealing with it in a criminal context certainly you’re going to want that recording even if not admissible to substantiate your position.

If your goal is to perfect a civil lawsuit you need to be very careful about recording. Understand, as an employee that if you make that recording although it may support your believability as a witness it can’t be used. And if you’re asked in a subsequent civil lawsuit whether or not you have recordings you’re going to have to turn that over and admit that you engaged in illegal conduct.

So ultimately, I can’t advise employees to do it ‘cause it is actually illegal conduct. And so, I think that the employee has to think long and hard before they do it and I think most employees don’t understand that consequence that its illegal, its subject to a fine that can be enforced through a subsequent lawsuit. And really, if your proof isn’t strong enough, unfortunately, without the recording you probably wouldn’t get there with a recording as well.

What you’ll find, oftentimes, with the recordings is they’re not as clean as people think. In other words, people think I’m going to walk in, I’m going to ask a question, and I’m going to get an answer that implicates my boss in sexually harassing conduct. And that’s not the way that conversations go in any situation. And so, what you’re doing is engaging in a very risky decision making process by making that recording. You’re hoping that you can get your boss to admit his wrongdoing, which people don’t typically do even if they don’t know that they’re being recorded. And if you don’t get that, if you don’t get that answer, which may or may not be admissible in the end anyway, you’ve engaged in illegal conduct that exposes you so its too risky in most situations to do that. And I don’t advise employees to engage in that conduct.