Can an employer use private phone call of employee as evidence?

[PericlesParadox]

In the State of Texas, can an employer use an inadvertently recorded private phone call of an employee in their work office as evidence in a disciplinary hearing or civil trial? As Texas is a 'one-party' consent state, I understand that an employer cannot intercept, use, or disclose a recording of a private phone call without the express and prior consent of the employee. I would argue for this reason that no inadvertently recorded phone call could be used by an employer in a disciplinary hearing or civil trial.

 

[quincy]

In the State of Texas, can an employer use an inadvertently recorded private phone call of an employee in their work office as evidence in a disciplinary hearing or civil trial? As Texas is a 'one-party' consent state, I understand that an employer cannot intercept, use, or disclose a recording of a private phone call without the express and prior consent of the employee. I would argue for this reason that no inadvertently recorded phone call could be used by an employer in a disciplinary hearing or civil trial.

It depends. Did you sign anything with your employer regarding the use of company phones?

 

[PericlesParadox]

It depends. Did you sign anything with your employer regarding the use of company phones?

No, I had not signed any agreement concerning the use of company phones, and had taken a private phone call with the doors closed on my personal mobile phone.

 

[cbg]

On company time?

 

[PericlesParadox]

On company time?

No, I took this phone call in my office with the doors closed after working hours. The phone call was not taken on company time.

 

[Taxing Matters]

In the State of Texas, can an employer use an inadvertently recorded private phone call of an employee in their work office as evidence in a disciplinary hearing or civil trial? As Texas is a 'one-party' consent state, I understand that an employer cannot intercept, use, or disclose a recording of a private phone call without the express and prior consent of the employee. I would argue for this reason that no inadvertently recorded phone call could be used by an employer in a disciplinary hearing or civil trial.

How did the employer record the conversation? You used your own phone and the employer wouldn't have had access to that device. The details of exactly the recording came about matters.

 

[PericlesParadox]

How did the employer record the conversation? You used your own phone and the employer wouldn't have had access to that device. The details of exactly the recording came about matters.

The recording of this phone call were captured by a nearby recording device that I had not known about, had not given my consent to use to record my phone call, and had later asked to be deleted from the device.

 

[zddoodah]

can an employer use an inadvertently recorded private phone call of an employee in their work office as evidence in a disciplinary hearing or civil trial?

You need to describe the relevant facts.

1. What does "private phone call of an employee in their [sic] work office" mean?
2. To whom were you speaking?
3. What was the subject of the discussion?

Given that you were using your personal mobile phone, how was the recording made, and why was it "inadvertently recorded"? Does the employer normally record phone calls made on its phone system? If so, are the employees aware of this?

What does "disciplinary hearing or civil trial mean"? Are either or both of those things happening, or is this a hypothetical? If it's a civil trial, who sued whom and why? Has the employer stated an intent to use the recording in some way? Are you represented by an attorney?

The recording of this phone call were captured by a nearby recording device

Please clarify what this means.

 

[adjusterjack]

Now tell us exactly how this phone call recording is being used against you?

And with what results?

You refer to a "disciplinary hearing or civil trial."

Which one? Neither? Both? Something else?

While we wait for answers here are the Texas laws that are involved.

PENAL CODE CHAPTER 16. CRIMINAL INSTRUMENTS, INTERCEPTION OF WIRE OR ORAL COMMUNICATION, AND INSTALLATION OF TRACKING DEVICE

Texas Constitution and Statutes - Statutes By Date

 

[PericlesParadox]

I am sorry. I should not provide any more details.
Thank you for your efforts.

 

[quincy]

I am sorry. I should not provide any more details.
Thank you for your efforts.

That’s probably smart, especially if you are a party in a court action. I suggest you speak to an attorney in your area. Anything said to the attorney will be held in confidence.

 

[LdiJ]

You are right that you probably should not provide any more details here. However, the situation seems to be such that you might want to run it by a local attorney with whom confidentiality would apply.

 

[Taxing Matters]

The recording of this phone call were captured by a nearby recording device that I had not known about, had not given my consent to use to record my phone call, and had later asked to be deleted from the device.

That sounds to me like the recording only captured your side of the conversation unless you had the phone on speaker (which, if you want privacy, isn't a good option to use). If only your side of the call was captured that call might not be admissible because it may be difficult to understand the conversation without hearing all that was said, not just your side of it. You'd need to provide a copy of the recording to an attorney and explain exactly how the call was recorded for a good answer as to whether it may be used against you in a legal proceeding. Since your employer is the one taking the action against you and the call was made while you were on the employer's property you don't have quite the same expectation of privacy that you'd have in other places, like your home for example. You may be fired at any time for most any reason unless you work for the government, are a member of union that has a collective bargaining agreement with the employer, or you have a contract with the employer that limits the circumstances in which the employer may fire you. If the employer would sue you for some alleged harm you caused to the employer and the recording is critical to the case then the issue of admissibility becomes much more critical. As a general rule, an employee should not say anything while at work that is at all negative of the employer because you never know who might overhear the conversation and could find yourself in the unemployment line pretty soon after. If the employer has not yet taken any steps indicating that you are going to be sued, fired, or otherwise disciplined for it then I suggest you try to not let fear of what MIGHT happen get the better of you. If the employer actually does something, then go to an employment law attorney for advice.

 

[quincy]

It is also possible that the person on the other end of the phone conversation okayed the recording.

 

[LdiJ]

It is also possible that the person on the other end of the phone conversation okayed the recording.

But it was on a cell phone so how would that have worked? Obviously they couldn't tap the guys cell phone. Unless of course they were taping from the other's person's end, but that really doesn't make much sense unless law enforcement was somehow involved.