Q: I believe I’m going to be fired today. My manager is unfair and throws others under the bus with our corporate senior management to escape trouble for himself. I’ve heard he’s made me the scapegoat for everything that’s gone wrong in our branch. I want to ask him, point blank, what exactly I’ve done that’s been bad enough to fire me. I want to record him and use his misinformation to fight my termination.
We moved here from Seattle for this job, which has turned out to be a nightmare because of this manager. When I told my sister my plan, she said I need to ask my manager for permission, first which I know he won’t give me. Can I secretly record our meeting?
A: Yes, unless your company has a policy banning recording. Alaska, like New York, the District of Columbia, Colorado, Texas and Virginia, is a “one-party consent” state, meaning you’re generally permitted to record a face-to-face conversation even without the other person’s knowledge or consent. The Alaska Supreme Court has held that Alaska’s eavesdropping statute, A.S. 20.20.310, addresses third-party interception of communications and doesn’t apply to someone who is a party to a conversation. In Washington, all parties need to consent to the recording of any private conversation, whether conducted face to face or over the phone.
The media is full of those who have successfully recorded termination meetings. Omarosa Manigault-Newman recorded her termination meeting with her then-boss, White House Chief of Staff John Kelly, to support her claim that Kelly threatened her.
Additionally, the federal Equal Employment Opportunity Commission notes that employees can record a supervisor’s alleged harassment, as occurred when Simone Grimes supported her sexual harassment lawsuit by recording Federal Housing Agency Director Mel Watt urging her that they explore what he sensed was an “attraction” between the two of them and noting that he could fast-track a promotion for her. According to Grimes’ allegations in her EEOC complaint and separate lawsuit, the pay increase she had been promised required Watt's approval, but when she brought it up, he seemed interested in a quid pro quo. Wyatt denied wrongdoing.
Meanwhile, an employer can prohibit its employees from recording conversations at work without getting others’ consent when its policy is based on the employer’s legitimate business needs and doesn’t violate its employees’ right to engage in protected “concerted” activities such as discussing wages and working conditions with coworkers. For example, an employer could restrict employee recordings in hospitals or medical facilities as those recordings might violate the Health Insurance Portability and Accountability Act.
To be in compliance with the National Labor Relations Act, employer policies need to note that employees may record conversations if they do so to address harassment, discrimination, unsafe or hazardous conditions, grievances, inconsistent application of employer rules or discussions with management or coworkers about the terms and conditions of their employment.
Finally, while Alaska’s one-party consent status allows you to secretly record your manager, you take a risk. If your senior management realizes you regularly and secretly record others, they may decide to exercise their employment “at will” right and terminate you. Also, if you surreptitiously record your manager to gain an unfair advantage, for example to blackmail him with a recording to secure a bonus or promotion or avoid a legitimate termination, your recording might be criminally illegal.