Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, July 26, 2013

Can I Tape My Employer If I Have Poor Memory?

I got this question on an old but popular post, I Secretly Taped My Boss and Now I Want to Sue:

I have been telling my supervisor for months that I have a memory problem. He knew that I was working with a neurologist. I recorded a meeting with him where I anticipated finding out what my new job duties would be. I live in MD and was terminated for making the recording, even through I told them why I did it.

Hi Thisguyneedshelp. As I stated in my prior post, Maryland is an all-party consent state, meaning that your employer must consent before you are allowed to record them. In your situation, I think withholding consent might violate the Americans With Disabilities Act (ADA).

If your memory problem is caused by a disability, such as Alzheimer's, Parkinson's, or another medical or mental condition that substantially limits a daily life activity, then you are allowed to request a reasonable accommodation for your condition. If you told your employer you need to tape conversations so you can remember them, that's a request for a reasonable accommodation under the ADA.

If you've been taping conversations with their knowledge, then all of a sudden they fired you for doing so, then firing you for doing so may violate the ADA.

If, however, you secretly taped the conversation and they found out about it, you may be out of luck.

Here's what I suggest for people who want to tape conversations in an all-party consent state. Put the tape recorder on the desk in front of the person with whom you are speaking. Turn it on and say, "I'd like to tape this conversation. Is that okay?" If they say yes, then tape away. If they say no, turn it off. You could add, for future employers, "I'd like to tape this conversation to accommodate my memory issues. Is that okay?"

If you were fired for taping without the employer's consent, then Maryland, like every state except Montana, is an at-will state. That means you can be fired for any reason or no reason at all (with exceptions). You can't be fired because of a disability, race, age, sex, religion, national origin, or other protected status. You can't be fired because you blew the whistle on illegal activity of the company, made a worker's comp claim, or took FMLA leave. Otherwise, they can fire you for a bad reason or no reason.

I'd suggest talking to an employment lawyer in your state about your rights.


  1. I was thinking about ADA as I was reading this. But, couldn't the employer tell Thisguy that he needs to just take copious notes, instead of recording? I'm no lawyer, but from what I've seen of ADA, I would think that they could get away with that, unless Thisguy can show why it's not feasible to just take lots of notes - and can either show that he told his boss, or that it should have been obvious.

    Am I off base here?

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.