If I’m threatened at work, can I legally record the bully? What a Fort Worth lawyer says
Recording a conversation at work can seem pretty shady. But to some, it’s the best way to prove a truth.
Texas is a one-party consent state, which means you can record a conversation without telling the other person as long as you’re present during the conversation.
But will the recording actually help in court? That’s the question many may ask before taking such a risk.
This was the recent dilemma of a Reddit user who asked on behalf of a friend:
“[My friend] lives in Texas and her manager has been making inappropriate advances that make her uncomfortable. She and him are the only ones in office and there’s no one that can be a witness,” the poster wrote. “He calls her after hours too. I know Texas is a one party consent state so she can record, but is that good evidence to bring to HR or the EEO courts?”
Not necessarily, said employee rights attorney Drew Herrmann of Herrmann Law in Fort Worth.
“Sometimes juries view employees recording as a bad thing,” Herrmann said.
“It can be twisted against the employee even if they have no ill intentions and they’re truly just trying to protect themselves. The jury could view it as you were provoking the situation, and that’s when you started recording.”
Herrmann cited the Depp v. Heard defamation trial of 2022 as an example.
“Amber Heard was recording Johnny Depp and a lot of people on social media were saying ‘She was only recording when she was trying to provoke him.’ Whether that’s true or not, we don’t know, but it’s the same thing. So when employees are recording, I just caution them that, even putting the phone in your pocket and recording, juries tend to look down on that.”
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Workplace harassment
Harassment is a form of workplace discrimination that violates the Civil Rights Act of 1964, according to the Equal Employment Opportunity Commission. A recent analysis of EEOC records by a law firm found that Texas had the 12th-highest rate of workplace discrimination in the United States.
The best way to prove workplace harassment or bullying is with written documentation, Herrmann said.
“Do it in writing and do it via email. Keeping a list of things that have happened along with the dates that it occurred can be very helpful.”
Human resources should be the first point of contact when dealing with workplace harassment. Employees are encouraged to file a complaint with the Texas Workforce Commission if the problem persists.
Texas employees have 300 days from the date of the incident to report sexual harassment to the TWC.
Herrmann also recommends seeking legal advice and avoiding the urge to post about the situation on social media.
“Putting the employer on blast before you talk to a lawyer could do some damage to the case.”
