As Comey shows, documenting conversations with your boss can be smart

“This conversation will be recorded”
“This conversation will be recorded”
Image: National Archives via AP
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This post has been updated

When former FBI director James Comey testifies before the US Senate today (June 8), he’ll be relying on the meticulous notes he kept of his interactions with president Donald Trump.

Careful documentation of meetings via notes and memos is part of the FBI’s culture (paywall), but there are sound reasons for ordinary workers to at least consider doing the same when we talk to our bosses. Taking notes—or better, recording conversations in states where its legal—is sound practice for employees who feel their managers are doing something inappropriate.

The notes or recordings are particularly valuable in situations where it’s an employee’s word against their boss’s, such as in sexual-harassment cases, said Randi Melnick, an employment law attorney. In an arbitration hearing or court case, where senior executives are seen to have more credibility, proof of misbehavior can even the scales.

“If John asks me on a date every time he comes into my office, and I press ‘record’ every time he comes in, that’s a pretty smart move,” Melnick said.

(Update 11 am ET: In fact, Comey offered a very similar explanation for his note taking in his testimony this morning: “I was honestly concerned that he might lie about the nature of our meeting, and so I thought it was important to document it.”)

With the increased attention paid to harassment at work, and the ease of recording conversations surreptitiously on smartphones, it’s a strategy likely to become more common. There is evidence it works: Gretchen Carlson, the Fox News anchor who accused Roger Ailes of sexual harassment, secretly recorded her conversations, according to New York magazine, backing up her claims which resulted in a $20-million settlement from 21st Century Fox.

Recording conversations without the permission of all parties is illegal in 11 states, including California (here’s a complete list). Individual workplaces may ban the practice, although the legality of those rules is in question. Last year, the National Labor Relations Board held Whole Foods’ policy banning recordings by employees was over-broad and violated labor laws, because they could infringe on their rights to organize. Whole Foods is appealing.

Just as employees have an interest in recording conversations, so too might employers who want to protect themselves from unfounded accusations. But there are practical reasons why almost no companies routinely monitor employee conversations, said Marc Bernstein, an attorney who represents corporations in employment disputes at Paul Hastings LP.

Constantly recording employees would be cumbersome and costly, and any digital system could be hacked, putting company secrets at risk, Bernstein said. It would also create an atmosphere of paranoia, with workers scared to speak their mind. Comments that might seem innocuous could become inflammatory out of context.

From a legal standpoint, “you could be creating evidence that otherwise wouldn’t exist,” he said.

There’s also history of recording being used against the recorder. US president Richard Nixon’s habit of recording conversations in the Oval Office backfired spectacularly when it was revealed 18 1/2 minutes of taped conversation were missing, helping seal the case for impeachment against him.

At least one company does record its employee meetings: Bridgewater Associates, a hedge fund that fosters an atmosphere of “radical transparency.” While the recordings are intended used as a training device, chairman Ray Dalio says it helps protect the firm from frivolous suits.

Recording a boss as a matter of course could lead to accusations of stealing confidential information, particularly if the employee leaves for a competitor. So employees should only record conversations if they have reason to be suspicious, Melnick said. And what happens when a company accuses a worker of espionage, and an employee claims they were just protecting themselves?  ”That sounds like a juicy court case,” she said.