Using Smart Phones and Other Devices to Record Workplace Conversations for Use in Discrimination Case
Few pieces of evidence are more persuasive than a tape recording of a party to a lawsuit in which the party makes a discriminatory statement. A discriminatory comment captured on an iPhone or other smart phones or recordings devices could go a long way in proving a discrimination case.
Many employees who are unjustly harassed, disciplined or fired do not come to court with any direct evidence of discrimination. Often times, the case boils down to “he say, she say.” But a discriminatory comment captured on a smart phone could be the decisive factor in proving your case. A comment about a person’s age, race, sex, gender, pregnancy, sexual orientation, disability, ethnicity, religion, or comments relating to stereotypes, could be very helpful in proving discriminatory intent. If it’s a sexual harassment case, you can record the harasser making inappropriate sexual remarks or statements of other employees admitting that he/she was sexually harassed by the same person. You can record meetings, interviews, one-and one-counseling, performance evaluations, etc. (Other digital evidence of discrimination may include photographs, video recordings, emails, Facebook posts, and other electronic messages).
In New Jersey, recording workplace conversation is legal so long as you are a party to the conversation. You need not disclose to anyone that you are recording the conversation. You can tape record a conversation between you and your employer or with co-workers without their knowledge. However, you cannot tape record a conversation between your employer or co-workers unless you are participating in the conversation.
The following should be taken into consideration.
1. You may be terminated for recording conversations. While recording a conversation in New Jersey is legal so long as you are a party to the conversation, your employer may have a policy prohibiting recording workplace conversations. Thus, while you may use recordings in your discrimination case, you risk being fired by your employer.
2. The recordings must not be altered or deleted in any way. No part of the recordings should be deleted, edited or altered in any way. If you delete or edit any part of the recordings, the recordings will not be admissible in court. The entire recordings must be left unaltered.
3. Be careful what you say. Since you are recording conversations in which you are a party, you should be careful what you say as the recordings may also hurt your case.
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