Federal employees need to be aware of the dangers associated with secretly recording phone calls and conversations in federal workplace. While the laws vary on this issue from state to state, in a number of states secretly recording conversations (either in person or on the phone) without the consent of all participants to the conversation can constitute a crime , as can use or distribution of those secret recordings. See, e.g., Md. Code, Courts and Judicial Proceedings, § 10-401 et seq. Verifying whether or not a crime occurred can be complicated by the expansion of telework (including more frequent telework outside the immediate commuting area of employees’ normal workstations of record) due to the COVID-19 pandemic. Even in jurisdictions where such secret recording is not a crime, it can still serve as a basis for an agency to discipline an employee, often based on charges such as violating express policies at the employing agency against secret recording or conduct unbecoming a federal employee. See, e.g., Warner v. Dept. of Agriculture, MSPB Docket No. SF-0752-20-0622-I-1 (September 30, 2021)(Carter, A.J.); Siefring v. Dept. of Justice, MSPB Docket No. CH-0752-20-0509-I-1 (July 20, 2021) (Vlahos, A.J); Foley v. Dept. of the Treasury, MSPB Docket No. CH-0752-18-0144-I-1 (September 28, 2018) (Vlahos, A.J.); Dorkin v. Dept. of Justice, MSPB Docket No. SF-0752-17-0179-I-1 (September 25, 2017) (Kang, A.J.); McGill v. Dept. of Defense, MSPB Docket No. DE-1221-16-0198-W-1 (February 7, 2017) (Roth, A.J.). The fact that an employee believes that they need the recording for a current or future EEO complaint, whistleblower reprisal complaint or similar claim does not excuse violation of secret recording policies at agencies; instead, employees engaging in secret recording can still be subject to discipline despite the motive for recording. See, e.g,. Siefring, MSPB Docket No. CH-0752-20-0509-I-1; Dorkin, MSPB Docket No. SF-0752-17-0179-I-1; McGill, MSPB Docket No. DE-1221-16-0198-W-1. Similarly, an employee is not permitted to secretly record just because they might need to record meetings to reasonably accommodate a disability; the better approach for an employee in that situation may be to request reasonable accommodation for their disability through proper channels. Cf., e.g., Nakesha T. v. Dept. of Defense, EEOC Appeal No. 2020001031 (August 5, 2021). Otherwise, for many employees it is probably safer to stick with old-fashioned pen and paper for notetaking purposes in many instances.
If you are a federal civil service employee and require legal guidance or representation for requesting a reasonable accommodation for a disability, are facing disciplinary action for secret recording, or otherwise have questions regarding your legal rights, please consider contacting Gilbert Employment Law, P.C. to request an initial consultation.
