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Go to my show page on the website of The Chorus Radio Station you're listening to, and you can download or listen to any of the interviews that we do on the show, any of the segments, including the callers. Now, the question I have now is, should you use your smartphone to record meetings focused on you and your performance and called by your manager and possibly senior management of the organization you work for? That's what Lindsay Shepard did. Lior Semfiru, senior partner and employment law specialist at Semfiru Tamark and LLP in Toronto joined me.
Lior, thank you for the time, and is what Lindsay Shepard did, record a meeting which was likely to be critical of her decision, an unusual thing to do, or is it done quite frequently by employees who press the record button before they enter the meeting room? It is actually, Roy, quite a common thing, especially today in the age of the smartphone where we each have a recording device essentially at all times with us. I see this very often, and it can usually have a good result in the sense that it allows you to document what happened and avoid a he said, she said type of a situation. I see this often.
I had recently a client who recorded a meeting where their employer told them they're going to be making their life miserable if they stay, they're going to be watching them to the point that they're not going to be able to do their job. And when the person quit as a result, it was easy to establish that he quit because of what his employer said, which, Roy, I assure you, the employer would have denied otherwise very quickly. So what's the line that employers may not cross in a personal meeting critical of an employee? Well, certainly anything that makes the employee's life miserable, that creates a poison work environment, that demeans or belittles an employee is completely inappropriate, it crosses that line.
Even if an employee does something wrong, there's an expectation that the employer was going to act professionally, that the employer is going to respect the person. If you can let someone go, what you can't do is you can't abuse them essentially. One thing I want to mention, Roy, on this issue of recording conversation is the fact that from a legal standpoint, you can only record a conversation that you're a part of, or at least one of the parties consents to that recording. So what you cannot do is you cannot just put a recorder in a boardroom to see what other people are saying about you, because at that point you're not part of that discussion, and that actually could be a criminal offense.
I want to warn anyone listening, you can't just go recording people secretly if you're not part of that conversation. But otherwise, I always say having a record of what's said is always a good idea, and recording is a very useful way of making that happen. Do you have any sort of responsibility, Leila, to inform your employer that you're recording a conversation? Well, if we look at it from a legal standpoint, the short answer is no.
Legally speaking, there's no law that requires you to tell anyone that you're recording them. That said, from a different standpoint, from either an ethical, but potentially from an employment standpoint, you should do that simply because if your employer were to find out later that you were recording a meeting without telling them, they may think that you're trying to somehow put them in a situation that's difficult, and there could be repercussions. I wouldn't like to be recorded when I'm not expecting it. So I think that employees could get into trouble if they're recording someone secretly, their employer, without telling them, although they're not breaking any laws in doing that.
Does the employer have a responsibility to inform the employee if the employer is recording a conversation between the employer and employee? The law does come down a bit harder and more stricter on employers. Employers tend to record, usually, employees without their consent, because in doing that, they may create a situation where the employee may be treated or may treat their employment as being constructively dismissed by saying that what you've done here is you put me in an unhelpful situation. You've made me unable to speak to you freely.
This often happens also when there's other recording devices, perhaps a camera in a place where you would expect to be private. So there are some potential repercussions for employers recording conversations with employees in that the employees may consider that a big deal and a breach of the terms of employment. Lear, did the Lindsay Shepard case make any particular impression on you? Well, you know, I'm going to say this.
I think that what the university did here, in my opinion, was not very – it was inappropriate, especially for an institution that needs to encourage free speech and education and open-minded and looking at all opinions. I was very surprised that they would take that type of a position, that type of an approach, rather than be more open-minded. It was very disappointing to see. So a very clear message sent to employers everywhere, but be careful what you say to your employee because you never know when that smartphone is recording.
These days, you have to be careful. If you don't want something to come to, you know, biting you in the rear end, don't say it. You know, for the last 30 years or so while we talk radio, I've always said, don't say to me today what you don't want me to play back for you tomorrow. Good advice.
Good advice to anyone listening and certainly for employers out there. Thanks, Leora. Good to talk to you. Always a pleasure.
Leora Sampiero, senior partner and employment law specialist at Sampiero Tamarkin LOP in Toronto. A safer Ontario means more police and prosecutors making sure my card doesn't get stolen. It means building new jails to keep criminals behind bars. And it means there's no need to worry when I play at the park.
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