Omarosa secretly recorded her coworkers—think very carefully before doing the same

Before you channel your inner Omarosa, you may want to consider the consequences.

Before she was fired from the White House last December, former West Wing aide and reality television star Omarosa Manigault-Newman secretly recorded conversations she had with President Trump and his chief of staff, John Kelly. She played one of the recordings — in which Kelly fired Manigault-Newman during a meeting in the secure Situation Room — during an appearance on NBC’s CMCSA, -0.17%  Meet the Press on Sunday.

While Manigault-Newman was criticized by interviewers for such a breach of protocol, she is not the only one to take such covert actions. A recent study conducted by researchers at Cornell University found that smartphones that can secretly record conversations with one swipe and other gadgets have created what researchers called “the surveillant consumer,” which essentially helps turn everyone into a potential spy.

Also see: 5 apps for spying on your spouse

And in the #MeToo era, recordings that might capture inappropriate workplace conduct can be critical tools to rectify toxic work situations or to bolster legal cases against sexual harassers or abusers.

Sometimes, the recording can be legitimately made. Last year, University of California Regent Norman Pattiz stepped down from his position after comedian Heather McDonald broadcasted sexually inappropriate comments he made in 2016 while she was taping a commercial for her podcast in the studios of PodcastOne, a Beverly Hills-based media company. Pattiz said he was retiring after 16 years in the position, and said his decision to step down was not related to pressure from fellow regents and students at the college.

In this case, however, McDonald was not flouting wiretapping laws in California, where two people must be aware a recording is being made, because she was clearly recording an advertisement for her podcast in the studio when her then-boss, Pattiz, walked in. During the recording, Pattiz can be heard asking McDonald whether he could hold her breasts as she recorded a bra commercial. (McDonald subsequently moved from PodcastOne, which was founded by Pattiz, to a different podcast company.)

Pattiz subsequently apologized. “There is no excuse for any such comments or making anyone feel uncomfortable,” he told the L.A. Times at the time. “If I did that, I sincerely apologize, and it will be a valuable learning experience.” He said he “deeply regrets” the comments, adding, “I can assure you that you can teach an old dog new tricks.” Pattiz did not immediately respond to a request for comment.

The laws regarding secret recordings vary widely across the country. Here’s what workers need to know:

Laws regarding secret recordings vary from state to state

Laws regarding recording conversations fall into two categories, one-party consent and two-party consent. Thirty-eight states and the District of Columbia have one-party consent laws regarding recording conversations, meaning that only one person in the conversation needs to know that a recording is being made for it to be legal. This is also the standard at the federal level.

For 11 states, two-party consent laws are in place, which require the person making the recording to get approval from everyone engaged in the conversation for it to be legal. These states include California, Connecticut, Florida, Illinois, Montana, Nevada and Washington, among others. Massachusetts state law bans secret recordings altogether.

The two-party consent laws can get someone in trouble, even if the information disclosed on the recording is of legal importance. Linda Tripp, for instance, was initially indicted on wiretapping charges for recording phone calls with Monica Lewinsky in which Lewinsky divulged details of her relationship with President Bill Clinton. Maryland, where Tripp lived at the time, requires all parties to consent to a recording. The charges were eventually dropped.

If someone records a conversation they eavesdropped on and did not participate in, that could also be deemed as wiretapping, legal experts said.

Don’t miss: Read this before agreeing to sign a nondisclosure agreement

Your boss may be allowed to record you

In some states, employers are required by law to notify their staff if they record workers in some way, such as taping calls. And even then, employers typically can only record calls or workroom conversations if they pertain to business matters — but if a staff member is talking about something personal, they are supposed to stop recording.

Additionally, employers are required to have a legitimate business reason to record their employees. Rules pertaining to recordings cannot violate employees’ rights based on the National Labor Relations Act, said Jonathan Segal, a partner at Philadelphia-based law firm Duane Morris. In particular, employers may not record workers for the purposes of monitoring union-related activities.

However, legal standards for recording employees exist in a relative gray area, according to Donna Ballman, an employment lawyer based in Ft. Lauderdale, Fla. “Employers have argued pretty successfully for years that there is no expectation of privacy in the workplace,” said Ballman, who is also the author of the book “Stand Up For Yourself Without Getting Fired.” “That means they have gotten away with even surreptitious recordings in many cases.”

Recordings can be helpful in legal proceedings

Particularly in cases regarding discrimination or harassment, recordings of conversations with the alleged perpetrator can be a useful tool for someone looking to take their case to court. But before someone goes to such lengths to tape a coworker, they should consult a lawyer, Segal argued. “They don’t want to do anything that violates the law or undermines their claim while they’re seeking evidence,” he said.

A one-off recording may bring to light a single instance of inappropriate behavior. But Segal argued that the accused individual’s attorneys could then argue that the recording was edited or made such that it took the comments or actions out of context. That could also hurt their case, he said.

Therefore, a worker might want to take the risk of recording multiple instances of the inappropriate behavior if it is a common occurrence. Workers should also document inappropriate or discriminatory behavior in other ways, including writing down a recollection of what happened or emailing coworkers to see if they noticed or had similar experiences.

Read more: What you can learn from Omarosa’s dramatic departure from the White House

Your boss can fire you for making a secret recording at work

Even in one-party consent states where secretly recording someone can be legal, the law will not protect workers from being terminated for their actions.

“If an employee is at-will, their employer can terminate for any or no reason, just not an illegal reason,” Segal said. For instance, an employer could argue that the worker demonstrated a lack of respect for choosing to tape someone without their permission.

Consequently, workers should check their company’s policies before they choose to make a recording.

And even if an employee isn’t in danger of losing his or her job by making a recording, it could still have an adverse effect on their reputation. “You may lose credibility when they’re recording without someone’s consent,” Segal said.

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