If you feel you’re being harassed or discriminated against in the workplace or believe your employer is doing something illegal or unethical, you should think about coming up with evidence to support your beliefs. Documentary proofs (emails, memos, notes left on your desk, the contents of performance reviews) may be very helpful to your case. Recorded conversations between management and you could be an option, but that requires your serious attention and the advice of legal counsel to be sure you are protecting yourself and not running into dangerous terrain.

Before “wearing a wire”, consult your employee handbook, if there is one. Are there any rules or policies forbidding recorded conversations? If so, and your recording is discovered by management, they may have grounds to fire you, or to justify your termination already done. In the handbook, there may be “squishy” provisions prohibiting actions that impact trust or morale in the workplace, and that could be used as a basis for your discipline. In New Jersey, it’s legal for an employer to fire an employee for any or no reason (unless that reason is expressly prohibited by law).

Is recording of a workplace conversation lawful? New Jersey has a wiretapping law that says recording various conversations is illegal, but then states exceptions to the rule. New Jersey is considered a “one-party consent” state, which means the electronic intercept is legitimate as long as one party to the conversation (you) consents. Other states, such as Pennsylvania, require all parties to be aware of such recordings and consent. If your workplace is in New Jersey or all parties to a phone conversation are in New Jersey, recording is legal. If you record someone in another state, you must check with local legal counsel to be sure.  You may recall that Linda Tripp of Monica Lewinsky fame was charged in Maryland for taping Lewinsky without Lewinsky’s knowledge.  Different state, different rules.

If you decide to take the plunge, and you’ve recorded incriminating statements by management or co-workers, now what?

In cases of discrimination or harassment, you may use the recordings in an internal company grievance process. Make sure to retain accurate copies of anything you turn over.  An employer who wants to follow the law should investigate and, if the alleged harasser denies saying what’s been recorded, the employer may discipline the target not only for the harassment or discrimination, but also for lying during the investigation.

If the issue is illegal or unethical acts by a manager or another employee, the employer should also investigate the claims. If upper management or ownership isn’t complicit in the wrongdoing, and your evidence supports your claims, then the recorded target could be subject to discipline, up to and including termination of employment. If the person recorded is just doing what he or she is being told to do by higher-ups, then do not be shocked if management circles the proverbial wagons and makes up an excuse to separate you from your job.  If that happens, find experienced legal counsel instantly to help you.

In any scenario, it’s illegal for management or a manager to retaliate against an employee for complaining of discrimination, harassment, or other illegal or unethical conduct. Ideally, you should not suffer because of your recordings (if they’re done legally and not in violation of company rules or policies) or your complaints, but your workplace atmosphere may become less than ideal for you. You may have to negotiate a severance agreement, or file a lawsuit alleging discrimination and retaliation, including “whistleblower” retaliation if that’s what happened. 

You have legal rights and recourse in New Jersey, and one way to protect them is to file a legal action against an employer or ex-employer who retaliates against you for exercising those rights.

Before you take any of the above steps, please contact our office for a reduced fee initial consultation with our experienced employment law attorneys. There are many legal issues at play in workplace discrimination and retaliation claims.  Recording conversations, going public, and/or filing a lawsuit are decisions you should consider seriously before making them. Much better to get advice before than find out afterwards that your best laid plans have landed you in trouble.

When you call or write us, we will schedule you for a near-term initial meeting where we will sit down with you; listen to your facts; explain the law; and develop the best strategies to achieve your social justice and financial goals.  Call today. You will be glad you did.