By: Jonathan Landesman
As I sit here and write this article, we have experienced the first today of the televised impeachment hearings. To say that my wife was interested would be a massive understatement. She’s a true political junkie and she had the DVR running all day while we were both toiling away at work. After spending a couple of hours together on the couch watching the coverage, my mind began to wander. I thought about what lessons one could draw from the impeachment hearings that would apply in a broader context. As an employment lawyer who has spent the last 20 years defending employers in the courtroom, I saw several points begin to crystalize.
The first lesson has to do with the wisdom of recording conversations. At the hearing, there were countless questions about the “transcript” of the July 25 telephone conversation between President Trump and Ukraine’s Volodymyr Zelensky, but it wasn’t really a transcript at all. The so-called transcript wasn’t created using an audio recording and there was no stenographer taking down every single word verbatim. Instead, the transcript was really a memo prepared by staffers who wrote down what they heard, or what they think they heard, collectively.
Over the years, I have had dozens of employers ask me whether they should record conversations with employees, particularly when meting out discipline or conducting a termination meeting. In almost all instances, my answer is a flat out “no.” From a legal perspective, many states have enacted wiretapping laws that make it unlawful – even criminal – to record surreptitiously any conversation without each party’s consent (not just telephone conversations). And from a practical perspective, audio recordings are fraught with problems like sound quality and background noise. And recordings often make for bad evidence at trial because they don’t capture physical gestures (like a nod meant to answer a question in the affirmative). For these reasons, in almost every conceivable situation, employers are better off putting away their recording devices and instead taking detailed notes and using file memos to document what was said and not said when communicating with an employee.
The second lesson, although somewhat cliché, is that “timing is everything.” A key issue in the impeachment hearings is figuring out the precise sequence of events. Which came first: President Trump asking Zelensky for a “favor” or the order to delay releasing $400 million in military aid? Timing is important because it links events together and speaks to the issues of causation and motive. In the employment litigation context, retaliation cases often hinge on timing, especially the passage of time between an employee engaging in a protected activity such as making a complaint about workplace harassment and the time the employer institutes an adverse employment action such as a termination. Using this example, if an employee is terminated within days or weeks of making a protected complaint, his or her claim for retaliation would be relatively strong. But if the complaint is many months stale before the employee is terminated, the likelihood of the employee prevailing decreases dramatically.
The final lesson that I drew from the first day of the impeachment hearings has to do with electronic communications. On any given day, I may exchange over 200 emails and texts with clients and other lawyers, and these electronic communications never go away. In employment litigation, employers are often unpleasantly surprised when I explain to them that the plaintiff ’s counsel has served a document request demanding the production of years’ worth of emails, texts, and other communications. Managers and supervisors especially tend to view text messages as a friendly, informal communication. Messages that are unprofessional or casual – either in tone or substance – can come back to haunt you in an EEOC investigation or federal court proceeding. The best advice I can give employers in this area is to train their management team so that they understand and appreciate the potential liabilities associated with texting and emailing about employees and their job performance.
So, the bottom line is that no matter which political party you support and who you are rooting for in the impeachment hearings, make sure you abide by the lessons above to protect your company from potential employment law liability.
Reprinted with permission from the December 2019 “Utility & Transportation Contractor” magazine.