Labor & Employment Developments Blog

According to recent news stories, Mel Gibson is in trouble again. This time because of certain calls that his former girlfriend recorded in which Mel makes several inappropriate comments, including racial slurs, death threats, etc. I know what you’re thinking, “a Hollywood celebrity behaving badly — this is news?” I agree, but within this messy story there is an employment law issue.

The thing that is really giving Mel trouble is the irrefutable evidence of his nastiness — the tape recordings. In an average year, I have at least two or three cases that involve a tape recording, almost always surreptitiously recorded. The recording always raises several issues, including in no particular order:

Is the recording legal? This is a matter of state law and depends on whether the state is a one-party consent state or a two-party consent state. In one-party consent states, if either party to a conversation consents to the recording of the conversation, it is legal. In two-party consent states, all parties to a conversation must consent to the recording or it is not legal. Thus, in one-party consent states, secretly recording conversations is legal. It would be interesting to know where Mel and his ex were when the calls were made because California is a two-party consent state. Even so, these laws are seldom enforced. Good luck finding a prosecutor willing to go after Mel’s ex under the circumstances. Similarly, prosecutors are not usually interested in going after employees who recorded their termination meeting or co-workers telling dirty jokes. For what it’s worth, a list of one-party and two party consent states is here.

Is the recording accurate and complete? Believe it or not, I have encountered plaintiffs who have altered or edited tape recordings in an attempt to make their cases look better. However, I never take a tape recording at face value and always look into the issue of whether it is accurate and complete. A related issue is whether there are tape recordings in addition to the one being presented in the litigation. In one case that I worked on several years ago, a plaintiff presented a recording that seemed to support his allegations of harassment but later admitted in his deposition that he had dozens of other tapes that he had not produced and in fact had destroyed because they did not have any “good” evidence on them. The judge dismissed his lawsuit for spoliation of evidence.

Is the recording admissible? Obviously the answer depends on the circumstances, but usually the recording is admissible if it is accurate and complete. This is true even in two-party consent states where the law was arguably violated when the recording was made.

Does the recording help the party who made it? Most of the time in employment litigation, it is the employee who makes the recording, but every now and then an employer makes one. In my opinion, secret tape recordings hardly ever help the party who made the recording because most people find the idea of being secretly recorded distasteful and form a negative opinion about the person doing the recording. An employee may get some sympathy depending on the circumstances and the content of the recording, but an employer will almost always look bad. More broadly, it is worth considering the potential impact of the recording on the litigation. I have encountered recordings several times that were touted by a plaintiff or opposing attorney as “smoking gun” evidence, only to find upon listening to the recording that it was completely innocuous or even helpful to the defense.

How to avoid tape recording issues? Many companies have policies that prohibit tape recording without written consent, and those are fine as far as they go. However, I have a better approach — don’t say anything that you would not want recorded. See how simple that is. Seriously, is it so difficult to refrain from ranting, making death threats, using racial slurs and telling filthy jokes? Of course it’s not. In this day and age of cell phone video and mini digital recorders, it is a good idea to assume you are being recorded at any given time if you want to avoid trouble.