Alaska Employment Law

An employee who thinks something bad is about to happen at work sometimes brings a tape recorder and secretly tapes a conversation with a supervisor.  Has the employee committed a crime?  Can the employer fire the employee for the tape-recording?  Are the contents of the tape-recording admissible later on?

This fairly common scenario comes to mind because the 7th Circuit Court of Appeals just held that an employer who fired an employee for a secret tape-recording did not retaliate against the employee for engaging in a protected activity.  Argyropoulos v. City of Alton, 2008 WL 3905891 (7th Cir. Aug. 26, 2008).  

The answer to the three questions posed above depends on state criminal law, and maybe upon workplace rules.  In the 7th Circuit case cited above, the relevant Illinois state law criminalized the tape-recording unless the person with the recorder had obtained the consent of all the parties to the conversation.  That’s not the case in Alaska.  Under Alaska Statute 42.20.310, tape-recording a conversation is legal so long as at least one party to the conversation consents.  If the employee is part of the conversation, the Alaskan employee acts legally (under the criminal law, at least) in taping the conversation. 

If the other parties to the conversation ever find out about the tape recording, they almost certainly won’t be happy.  Their recourse?  In Alaska, they won’t get far with filing criminal charges, but they may have a tort claim for damages against the taping employee - for invasion of privacy.  Probably more importantly, the employer may be able to fire the employee for the taping.  Most employer manuals, personnel policies, and union contracts don’t expressly bar secret tape-recording (though they should, if that’s a real concern for the employer), but most manuals or policies bar “dishonest acts” or include other categories of terminable misconduct that might well include secret tape-recording. 

Will the employee’s job be saved if the tape captured evidence of employer misdeeds (admission of retaliatory or discriminating motives, say)?   That depends on what motivated the employer to fire the person - was the employer offended at the secret tape-recording, without regard to the contents of the tape, or was the employer using the tape-recording as an excuse to fire the employee for some protected activity?  In the 7th Circuit case, the employee failed to show that the employer was lying when it said it was offended at only the secrecy of the tape-recording.

Is the tape admissible?  Probably so, if it’s complete and audible.  But unless the employee has caught the supervisor in some black-and-white horrible misconduct, the employee runs the risk that many arbitrators, judges, and jurors will come away thinking that the employee is a sneaky, conniving person lacking in loyalty to fellow employees.  That unfavorable impression will hurt the employee in other areas of her or his case.