Client Alerts


Tuesday, May 13, 2014

Donald Sterling, Clippers fiasco, raises legal questions over recording private conversations

On April 29th, the National Basketball Association took steps to quell an employee and public relations crisis that was brought on by racist remarks from the owner of the Los Angeles Clippers, Donald Sterling. In addition to levying a $2.5 million fine, the NBA banned Mr. Sterling from the league for life after a private conversation Mr. Sterling had with a female friend was released to the public. The swift downfall of Mr. Sterling yields another important lesson for owners, managers, and human resource professionals.

Employers should assume that every workplace conversation is being recorded. Almost every employee is armed with a cell phone capable of audio and video recording, and, not surprisingly, the EEOC's Houston office estimates that 1/3 of all complainants coming to their office bring some type of digital evidence with them. Employees can and do use their smartphones, without employer knowledge, to secretly record performance reviews with managers and reasonable accommodation requests with human resource representatives. Such recordings can be legal depending on where the recording was made and can provide a plaintiff with powerful evidence in litigation.

 The majority of states, including New York, allow individuals to record conversations to which they are a party without informing the other party to the conversations. Other states, like California, are dual-consent states that require the consent of both individuals to record the conversation.

What can employers do? First, employers should always ensure that management is receiving annual anti-discrimination and anti-harassment training to minimize exposure should a recording surface. Second, employers can institute a policy prohibiting such recordings in the workplace but should consult legal counsel before enacting the policy to ensure that it does not infringe on any employee rights.

Amy Habib Rittling and Vincent Miranda are available to discuss steps employers can take to mitigate exposure resulting from secret workplace recordings.This post was first published on our sister site,

Disclaimer: The information in this post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from our firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.