How many times have you heard someone downplay a situation as being “he said/she said?” Many of our employment and civil rights cases involve events witnessed by just two people, often a harasser and their victim. These cases are no less important, and no less valid, than cases with a dozen witnesses, but the people we represent get nervous about being the sole source of evidence that their boss, a police officer, or a coworker did something illegal.
We often talk to victims who are hard on themselves because they feel like “he said/she said” means they will lose. The law does not differentiate between a victim’s testimony and an audio or video recording, but defense lawyers are known to challenge human testimony by attacking the credibility of a witness by criticizing their education, criminal history, sexual history, social interactions, or countless other sensitive (and potentially harassing) areas. So, if you are suffering harassment, discrimination, or retaliation, how can you “prove” it?
Audio and video recordings provide an inherently credible, reliable, and unbiased look at a situation. Imagine trying to tell the world the President of the United States called you and had a personal phone call with you. If there was no other record, and the President denied it, would people believe you? NPR recently wrote about “recent, high-profile instances of conversations secretly recorded at work,” and included commentary from a Houston-based employment attorney: “[T]oday the question really is why you didn’t record. You mean to tell me you have no recordings? If you are surprised you’re being recorded, then you are extremely naïve. It really is the way of the world.”
While we don’t see recording frequently enough to call it the “way of the world,” audio and video recordings are becoming a routine part of our cases. In our experience, recordings can provide valuable evidence to support our clients’ claims, but they are a double-edged sword and there are risks to consider.
Is it legal to record workplace and public interactions in Iowa? Absolutely, as long as you are a “party to the communication” or if one of the parties to the communication “has given prior consent” to being recorded. For example, if your boss is harassing you, there is no Iowa law prohibiting you from recording what they say to you because you are a party to the communication. The same is true when the police or other government employees talk to you: you are not illegally intercepting communications because you are a party to the communication. You do not need the other party’s permission to record as long as you are a party to the communication.
However, Iowa law prohibits the interception of oral, wire, or electronic communications when you are not a party to the communication and none of the parties to the communication has given prior consent to being recorded. For example, hiding a phone in someone’s office and hoping to catch others talking about you may be illegal if none of the parties to the communication have given their prior consent. The safest way to approach recording is to record only those conversations or events in which you are personally involved. Doing so provides a credible, reliable, and unimpeachable witness to what happened.
While it may not be illegal to record a conversation to which you are a party, your employer’s policies may prohibit workplace recording. Even if you are trying to gather evidence of illegal activity (like harassment, discrimination, or retaliation,) if your employer finds out, you run the risk of being disciplined or fired. There are arguments about the legality of firing an employee who is gathering evidence of illegal activity, but that may not stop an employer from taking action based on your recording.
Finally, recordings are evidence. If you are gathering evidence to help prove a harassment, discrimination, or retaliation claim, you have an obligation to preserve the evidence. That includes instances when you record but don’t gather anything helpful. Deleting the recording (especially if you think it is unhelpful) is a major problem. And in some cases, recordings fall short of providing the full context of an event. In those cases, the recordings can actually be damaging to your claims. Finally, some jurors are weary of people who record conversations without telling others, even if it is legal and allowed by an employer’s policy. Recording every interaction at work can make jurors suspicious of you or your motivations.
There are many factors to consider in deciding whether, when, and how to record communications. If you are involved in a situation where you think you need to record, it makes sense to reach out to an employment or civil rights law firm (like us!) for advice.
If you need our help with an employment law or civil rights matter, call our office or fill out this form and we will get back to you as soon as we can.