TO SAY OR NOT TO SAY: PROPOSED ADMISSIBILITY STANDARDS FOR SECRET WORKPLACE RECORDINGS BY EMPLOYEES.

As victims of harassment and discrimination know full well, complaints of harassment and discrimination are often dismissed by employers and are difficult to prove in court. Victims are responding to these obstacles by secretly recording workplace conversations to obtain evidence for their claims. However, secretly recording conversations often causes more harm than good. For one, those who engage in this activity will usually be terminated for workplace misconduct, and their unreasonable surveillance activities may preclude the very claims that prompted their recordings. In addition, the business itself may suffer a variety of harms, including erosion of trust and loss of employee morale. Despite the numerous drawbacks in secretly recording workplace conversations, courts have incentivized this activity by relying on the contents of such recordings at trial and when resolving dispositive motions. Given the legitimate employer interests in eliminating employees' secret workplace recordings and the harms flowing from such activity, this Article argues that such recordings should have limited evidentiary value, particularly in workplaces with a no-recording rule. Accordingly, to eliminate the primary incentive for secretly recording conversations, this Article borrows from analogous exclusionary rules found in state wiretap laws and proposes that Congress amend the federal employment discrimination laws to provide that recordings obtained in violation of an employer's no-recording rule are generally inadmissible for claims arising under those laws. This Article further proposes an important exception to this proposed exclusionary rule for recordings made after an employer failed to take appropriate corrective action on the recording individual's complaint of harassment or discrimination. In this manner, victims of harassment or discrimination would be encouraged to report their mistreatment, while employers would be incentivized to take such reports seriously. Through this balanced approach, workplace privacy will be preserved, without undermining the most legitimate use of this evidence-gathering approach against employers that shirk legitimate employee complaints. [ABSTRACT FROM AUTHOR]