"Can your staff members legally tape conversations with supervisors and others? In what ways can they come back to haunt school districts and companies?"


In fact, employees so often create dig-


ital records that the Equal Employment Opportunity Commission (EEOC) has reported that approximately one-third of employees who make discrimination complaints in its Houston office bring some form of digital evidence, including audio recordings. Such evidence can appear to reveal a


decision-maker’s real feelings. For exam- ple, playing a recording of a supervisor’s idle remarks about an aging driver’s readiness for retirement can influence a court in an age discrimination case. On the other hand, an Indiana court was unpersuaded in the April decision in Plummer v. Southern Hancock County Community School Corp., that a district wrongfully terminated a school bus driv- er. Te driver sued the district and placed in evidence tapes secretly made by a rogue school board member in a meeting with an unsuspecting superintendent. Te tape included complaints by the


superintendent that driver Plummer was a nay-sayer and a rabble rouser: “I can’t run this district for fear of firing her or not firing her because she wrote a letter to the editor. She has been a pain in the butt ever since I have been here. . . She


doesn’t meet our expectation. She causes dissension in the ranks constantly.” Te court found that the tapes did


not clearly show an intent to remove the driver in retaliation for constitutionally protected rights, and that the superinten- dent did not participate in the decision not to renew the driver’s contract. Win or lose, the production of recordings you didn’t even know exist can cause a real “Maalox moment.” We love being privy to unfortunate statements by politicians who don’t realize that the camera’s rolling. Mark Twain once said, “We all have thoughts that would shame the devil.” Be careful not to voice sentiments best left unspoken on the job. You never know who’s listening. 


Peggy Burns is former in-house counsel to a large suburban Colorado school district, and is now president of Education Compliance Group, Inc. (www. educationcompliancegroup.com). She is a sought-after presenter at state, regional, and national conferences, and at districts and company in-services, focusing most often on legal issues related to school transportation and special education. She is editor of Legal Routes, and a frequent contributor to STN.


PREVENTION In a “one-party” consent state, employment lawyers may advise creating a policy


prohibiting secret recordings, whether video, audio, or a smartphone voice memo. It’s wise to articulate in writing that the purpose of the policy is to promote open and honest communications and prevent the chilling effect that secret recordings could have. Know, however, enforcing that policy to discipline an employee that violates it can have mixed results. If the employer takes action against the employee for recording a conversation surreptitiously against policy parameters, the employee can then assert a claim for illegal retaliation in violation of federal and state law. There’s little guarantee about who will prevail in these cases. You’re entitled to refuse if an employee asks if they might make an electronic


record of a meeting. In the event of a labor agreement that provides for recording disciplinary sessions, the employer should make his or her own recording. And, if you ask if the meeting is being recorded, even if the employee lies, there


may be a heightened sensitivity about communicating professionally. And, if the employee did lie and later produces a recording, the district or company’s attorney might use the incident to challenge the employee’s credibility.


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