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Can employees make surreptitious recordings in the workplace?

Our readers who follow the daily political drama in the nation's capital, have likely seen former White House aide and reality show star Omarosa Manigault Newman on the political talk show circuit discussing her time in the White House and sharing tapes that she surreptitiously made during and after her firing from her position with the Trump administration. One of these is an audio tape of John Kelly, President Trump's chief of staff, dismissing her from her position.

Taping a conversation without the other participant's knowledge is legal in Washington, D.C., where she made the recording, as well as in 38 states, including Arizona. That's known as "one-party consent." However, employment attorneys as well as human resources professionals generally agree that taping workplace interactions isn't wise.

An exception would be if you're gathering evidence of illegal activity within the company that you're planning to expose as a whistleblower. One employment attorney acknowledges that such recordings, if legally made, can also help people prove their case in employment litigation matters like sexual harassment.

Many companies are now looking at their internal policies regarding taping by employees. One attorney predicts, "After this whole Omarosa incident, a lot of companies are going to be adopting new policies on [workplace recording]." Another attorney notes that if employees are recording meetings and conversations without the knowledge of the others involved, that workplace is "pretty far gone and dysfunctional."

Employment attorneys generally agree that such surreptitious recording, even if it's legal and not explicitly forbidden by a company, should only be done for the reasons noted above and as a last resort. If you're considering making such recordings, or have already done so, it's wise to discuss the matter with an experienced Arizona employment attorney.

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