Q. I supervise a contentious, passive-aggressive employee. We don't get along, but he is good at what he does. I'd fire him, just to be done with the drama, but he's got talents I don't want to lose.
This morning I learned he's recording each of our conversations on his smartphone. Since I don't say anything to him I wouldn't want repeated, I'm not worried about being taped; however, I find this annoying and creepy. I don't know even know how to bring it up because he'll know his co-worker snitched on him if I mention it. Can I and should I fire him?
A. Smartphones and other pocket-size devices give employees and others a powerful tool for easily and surreptitiously recording sensitive workplace conversations. Thirty-eight states, including Alaska, have "single-party" consent laws, allowing anyone to record anything they want without another party's knowledge or consent.
These recordings can be used personally, in court or released to news media. Attorney Katrina Patrick says more than 50 percent of the people who come to her office wanting to sue their employers bring digital evidence.
In a famous recent case, several dozen waiters and dishwashers at New York's Boathouse restaurant, armed with miniature cassette recorders, secretly recorded hundreds of workplace conversations with supervisors when complaining about pay and working conditions. When the restaurant owner fired 16 of the workers, they produced multiple audiotape recordings on which the owner told employees he'd go out of business if they voted for a union. These tapes provided proof that the owner had violated federal labor laws.
Employers who don't want to allow employees to secretly tape them need to implement a company policy of zero tolerance for unauthorized audio- or videotaping. This policy dissuades employees from recording conversations and serves as grounds for dismissal if they do. Employers in medical, law, financial, insurance, consulting and other fields have obvious patient and client confidentiality reasons to forbid recording.
Without such a policy, if you fire your employee, he may win a suit for wrongful termination. In February, the National Labor Relations Board ruled in favor of an employee fired after secretly recording a conversation in Hawaii, another single-party consent state. The company didn't have an unauthorized recording policy.
But before you jump to a legal or policy decision, you need to ask what turned your employee into a cellphone James Bond. Your employee wants something -- possibly to intimidate you or to get the goods on you. You can quash the symptom -- his secret recordings -- or focus on the larger problem.
You don't like this man yet you continue to employ him. Another employee voices a concern, but if you act on it she may pay the consequences. Your workplace needs a serious fix. Can you and your employee meet behind closed doors and hash this out? Does he need to leave? Do you need to change yourself?
While you can effectively work with and manage individuals you don't personally like, managers need to respect their employees and act in ways that earn their employees' respect.
One of your employees may be secretly taping you, but other employees are silently watching how you interact with him.
Your other employees judge you for your behavior, including the fact that you allow a passive-aggressive, contentious employee to act out toward you and potentially toward them. Your real fix involves more than this employee -- it requires that you take an honest look at your leadership before you lose credibility. This doesn't mean you have to come down with both feet on this employee, but it does mean you have to act well and quickly.
Management/employee trainer and the owner of the consulting firm The Growth Co. Inc., Dr. Lynne Curry provides columns to newspapers in several states. For questions, Curry can be reached at www.thegrowthcompany.com.
LYNNE CURRY
MANAGEMENT