City policy change requires permission to record

FORT WAYNE, Ind. (WANE) – A change to Fort Wayne’s city policies and procedures will require employees to get written permission to record a conversation with another employee.

Indiana is a one-party consent state, meaning a person can record a conversation they are having with another person without the other person knowing.

“Whether it’s ethical is another question, but it is legal,” Attorney Mark GiaQuinta said.

GiaQuinta said while the city’s new policy may go against state law, an employer can make its own rules.

“As an employer, during the workday, I have the right to create the kind of environment I think I need to sell my product or my service. That’s the difference. If you don’t abide by my rule, no one can charge you with a crime, but I can claim you were insubordinate and discharge you,” GiaQuinta said.

The policy change states an employee will immediately be fired for “unauthorized recording of conversations with or between city employees without their full knowledge and written consent.”

The city released the following statement Wednesday:

The City of Fort Wayne has been researching and studying this topic for over a year and recently moved forward with an updated policy. As technology changes, it’s imperative for organizations to adapt and make the necessary policy enhancements to protect employees. Policy changes are being examined and implemented in organizations across the country. The City’s policy has been updated to include that if an employee desires to record a conversation/meeting with another employee, permission needs to be sought and granted for the recording to take place.

Starting May 1, if an employee wants to record a disciplinary hearing, for example, he or she would have to have written permission.

“I don’t think there should be a problem with recording a disciplinary hearing because if you’re confident in what you’re saying, what difference does it make if I write it down or record it,” GiaQuinta said. “I do understand an employer not wanting employees to surreptitiously record each other. It could sow seeds of distrust among employees and could create all kinds of problems. I see that as a different issue from an employee wanting to record a disciplinary hearing. What [the city] may want is, ‘we will give our consent, we just want to know.'”

GiaQuinta said it can be likened to other workplace rules like limited phone and computer use.

“You have the right to carry a weapon, but you may not have the right to carry it into your place of employment,” he said.

If an employee were to record a conversation they were having with another employee outside of work, GiaQuinta said he thinks that would fall back under Indiana law.

“You’re entitled to record your own conversation, even if the other person doesn’t know you’re doing that, as long as the other person is also in Indiana,” he said. “The city would have a difficult time defending enforcement of a work policy that didn’t take place during the work day. The point is, I’m paying you. You’re here. I’m compensating you, therefore I get to set the rules. I’m not paying you when you’re off work. I question whether you can set a rule that applies to someone when they’re off the clock because the whole basis of being able to set the rule is that you’re paying them on the clock.”

Last month NewsChannel 15 did a story about parks department employees saying they were unfairly questioned by supervisors about going to city council to complain about new policies that were implemented after the repeal of collective bargaining last summer. The story included an employee recording of a meeting with managers. Wednesday the city said this policy change is not in response to that story.

If an employee wanted to record similar meeting now, he or she would have to get written permission first.

“The unions could bargain for the right for employees to record like that, but without unions, they can’t do that anymore. This is what we were trying to say when we were representing the unions and work rules. This allows people to sit across the table and there will be times when you want to show certain things were said in a meeting that are not being said now,” GiaQuinta, who served as legal counsel for the unions when city council repealed collective bargaining for the non-public safety unions, said.   “This is an example of a right employees might have been able to bargain for and put right there in the manual that during a disciplinary hearing the employee shall have the right to record the statements being made. [Now] it would be something the employee would have to negotiate, otherwise the employer has full right to say no recording.”

Ken Falk, the legal director for the American Civil Liberties Union of Indiana, said without knowing all the specifics, he thinks the city’s policy could have the potential to raise First Amendment issues.

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