Employee Survival Guide® - The Power of Recording Your Boss

Episode Date: February 21, 2025

Comment on the Show by Sending Mark a Text Message.Can your smartphone be your most powerful tool at work? We promise to unpack the hidden dynamics of employee leverage in the modern workplace, inspired by the unexpected fallout from Jamie Dimon's candid comments at a JP Morgan meeting. Discover the complex legal landscape of recording conversations, particularly how the difference between one-consent and two-consent states can drastically affect workplace interactions. We navigate a compelling real-world case study, where an employee's savvy use of recording—or lack thereof—changed the course of a legal battle, spotlighting the critical need for understanding your rights within corporate environments.Our discussion also sheds light on the deeper layers of corporate culture and the power dynamics therein, especially when public codes of conduct clash with reality. Jamie Dimon’s recent remarks on remote work reveal the sometimes harsh truth of employee engagement and corporate expectations. We expose how recording can serve as a rare, yet potent tool for employees facing discrimination or intimidation, and reflect on what recent Gallup polls reveal about the state of the workforce. Join us to explore how these elements shape the modern workplace, from the boardroom to the home office, and what it means for employee engagement moving forward. If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.Disclaimer: For educational use only, not intended to be legal advice.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you as always what your employer does definitely not want you to know about and a lot more. Hey, it's Mark and welcome back to another exciting episode, All Things Implement Law. So an interesting thing happened to Jamie Dimon of JPMorgan, and you probably heard about this. He had diarrhea of the mouth or just opened his mouth and didn't know he was recorded. And it's all the news now. The reason why I bring this to your attention is because you

know obviously the importance of what he did but there's something else more important. Jamie Dimon now has to backpedal on his comments and I'll get to his comments in a second because someone in an office meeting in Columbus, Ohio, I believe is where he was meeting, had a phone on. It didn't video record him like you'd see on like an airplane or something like a, you know, that type of video, but somebody put the audio recording on it and recorded it, and it leaked out. I feel bad for the person who it leaked out on because the person's probably going to

lose their job over this. And I'll get to that point in a second in terms of does the company have a policy about that. But the reason why I bring the issue of Mr. Diamond's escapades to your attention is because I want to bring to your attention, as I always do, the various angles that employees have or don't have in the form of leverage with the employers. And if, you know, I'm gonna say the obvious, but maybe you won't really truly understand it, that cell phone in your pocket on your desk, wherever it is, we all have them. And they are unique devices and they're more powerful than anything that was

sent to Mars or something out and out of space. That's how powerful they are. They have the power to record and eavesdrop. I'll start with the basics of, you know, can you record? And, you know, most states, and you should look this up, where you are residing and where you work, is look for one consent states or two consent states. A one consent states is basically you consent and you record. A two consent state is where you have to get the consent of the other party before you

record them. The next issue, this is your phone, this is a device that's in everybody's pocket and everybody owns them and has them, and it's an employee leverage that I'm trying to bring to your attention. So the next issue of analysis is, does your company have a policy against recording at work? Where do you find that policy? You find that policy in the manual, you find the policy in the HR portal, and look for it.

If it doesn't exist, I'm gonna tell you a little story. in the HR portal and look for it. If it doesn't exist, I'm going to tell you a little story. If it doesn't exist, then you can record them. Now, this may get you into issues related to what you're recording, and that's confidential trade secrets. You may have signed an agreement with your company, but put that aside for a second. We did a case against a hedge fund a few years back.

It was an aged case that was brought in one court and the employer found out the client had recorded and they brought a case in federal court and there was activities by the employer to pressure the client and try to sue him for violations of various trade secret agreements, confidentiality, et cetera., because he was recording. And there was a little mini trial that happened. And what took place was the witnesses took the stand in terms of explaining to the court what had happened and so on. And then they put up a witness that had, you know, they alleged that he was the guy who had experience related to the IT of the firm. And clearly I pointed out to the judge

he was not an IT witness expert, et cetera, and the judge believed me as well. But then I did something really unusual. I said to the same individual, does the company have a policy against recording? The judge's eyes perked up. This is a 93-year-old judge, well-esteemed, he's now passed. He perked up, and I got his attention. I knew I was on to something.

And the company, as the witness answered, did not have a policy against recording. Case is over. Literally, the case was over at that juncture. Because if there was no policy to record, it was a one consent state as Connecticut is, the employee could record. And what he had done actually, he didn't use his phone, he actually had a recorder in his pocket. It was not a great recording, it was muffled, it was painfully to hear it. But nonetheless, it was recording and it didn't really capture too much to help his underlying discrimination case, but nonetheless that's a short vignette.

So does a company have a policy? Look it up, you can find it. Now assuming you're in a one consent state, no company policy against recording, you have this phone device and this device can be used to capture what Jamie Dimon did. Now I need to go back to that because you're like, what the hell is he talking about Jamie Dimon? Well, this is what Jamie Dimon said. Quote, we also had, sorry, this is his language, not mine.

We also had, and you know, I'm right about this, a lot of you on the F and Zoom call, and you were doing the following, okay, looking at your email, sending texts to each other about what an a-hole the other person was, and okay, not paying attention, not reading your stuff, you know, and if you don't think that that slows down efficiency, creativity, creates rudeness, it does, okay, and he goes on to say in your rants, and when I found out that people were doing that,

do that in my goddamn meetings. If you're going to meet with me and you got my attention, you got my focus. I don't bring my goddamn phone. I don't send a text to people, it simply doesn't work. He goes on to say, and he makes reference to the work from home thing, and don't give me this shit at work from home Friday works. I call a lot of people on Friday and there's not a goddamn person you can get a hold of. He then goes

on finally to say with respect to a petition that the employees within the firm of JP Morgan had sent around, he says, quote, I don't care how many people sign the effing petition. So the rant obviously produced the results of people calling to the question, you know, the real intentions and thoughts of the billionaire leader here, by the way. He is paid $36 million a year. No, $39 million a year, no $39 million a year, that's up from $36 million a year before, and he has cashed in more than a billion dollars almost

of JP Morgan's stock, oh I'm sorry, half a billion dollars, I mean a billion, half a billion, the guy's wealthy, okay? But it sends a message to you that these organizations who are saying go back to work, etc The culture is terrible in these organizations in particular. Mr. Diamond's organization. It's a very large bank. It's very profitable And he was subjected to one important thing his own You know He shouldn't have opened his mouth the way he did, and I read you the quote, because somebody there was listening

and leaked out that information, and all you need to do is just search Jamie Dimon's comments, and you'll find just tons of material. But I bring this to your attention because of the power of the phone. And in this era that we're in, as you are employees, and if you're defense counsel listening, fine.

If you're executives, fine. Listen up. Employees work in your little private government. They have the ability to record you unless you have a policy that says they can't, unless the state, et cetera, doesn't have a, you know, if it has a two consent state, which most don't. So when employees are losing leverage and they're being forced back to work, they're thinking, how can I control this?

And I'm not saying you go about your day recording every conversation in the office. Bridgewater actually does that. Hello, Bridgewater. I love talking about you. You recorded everything and videoed it. But in seriousness, if there's some event takes place and you feel that you're on the ropes

and they're putting the writing on the wall for you, recording might be something that you want to consider. Again, check the state law, check your company policy, and you're gonna grab these tirades from a manager who may just do what Jamie Dimon did and give you the type of evidence you might need to support your case.

So we did it in the case I told you about in court and the defendant was just powerless to prevent it. And it may promote the IDS settlement if you need to do that. So there's a weapon there that you can utilize and that's your phone and It really is a powerful check in the system here Against your employer and let's make this really serious let's say you were for a public company and let's say you are in the information flow of something that might affect the reporting of financial information to the SEC.

And the SEC has a whistleblower program. If you don't know it, go to their website and you can read all about it. And there you are in the middle of something and you're just hitting, you're checking your phone because we all do it all day long. Much to the chagrin of Mr. Diamond who says, don't do it during my day in meetings, you're doing it and you're hitting the record button on our iPhones. And it's a very easy device to use

and no one knows you're doing it. And so it's a very powerful device, a tool to check the system or to build your case in secrecy offline because you can't put information on any company computer because they're watching that. It's a way for you to do your own data collection of information in the event that you feel that you're going to be in the crosshairs in the future. If your job's in jeopardy or maybe you're in a

performance improvement plan or whatever it is, the phone is a very important valuable device to capture interactions with you and your manager about what they're trying to do to set you up. And it also can act as a very good memory device for you to when you write your detailed narrative affidavit about what had taken place. So a phone's a very powerful device. The other part of the story that's coming out of the Jamie Diamond escapade here is culture. You know, they demand that you folks, you know, obey and comply with them, and they do this kind of fear-mongering, deterrent effect because, you know, they are them and whatever and we got to comply. But, you know, employees do have leverage and they do have power.

Not the same as before in the last two years. I mean, there was a heightened sense of power that employees had that was really unforeseen. And we're not talking union leverage power, we're talking just straight old fashioned employees have power and something unusual happened. And I'm speaking about the pandemic aspect and what employers did.

They literally just bent over backwards to make us feel like they were empathetic. And it was unusual to watch and feel. And it felt like a 9-11 event where we all said, we're coming together as human beings. But in reality, it was just a lie. Much like the DEI fiasco was a lie as well. it was all designed just to, you know, whatever that was, maybe marketing. But as you see the remote work aspects of come back to work or else approach, the employers are taking back their power

because that's the way that they are. They rule their little fiefdoms of their private governments called employment with fear and intimidation. And you know, most folks, you know, bow to it because of they need income and there's no leverage there. So I'm trying to give you a little bit of tool to help you in the leverage and that is your phone. And you can use it as a device, be smart about it, follow the rules, so to speak, as I told you, and to record them, and also to check the culture

of the company, because Jamie Dimon revealed to us what the true culture of the company was. And it's not all the code of conduct. You know, everybody knows what a code of conduct is. It's this thing they put on their websites. They put it in their SEC filings, and they say to you, these are the things you shall not do, or zero tolerance for this, that, and the other. Meanwhile, they do the exact opposite. How do I know that? Well, I have the cases that come to me, and I can see how they do the exact opposite. How do I know that? Well, I have the cases that come to me and I can see how they do the opposite. They don't even follow the damn code of conduct because they violate it all the time.

Because why am I so busy? Because they violate the code of conduct. So Diamond's comments reveal obviously the obviousness, but they reveal something of a culture within his organization. And it's not great And that's the way he views people. He is the captain of the ship He is the person who's designed he's charged with a fiduciary obligation and not no joke here a fiduciary obligation under corporate law to Essentially manage the welfare of the corporation including its shareholders and including employees

The corporations not anything without the employees to run it. So it's a reveal of that, and, you know, I'm sure you're also thinking about these tirades you've experienced in your own individual management meetings where, you know, somebody riffs off on something. It does happen. Maybe record that conversation.

Don't put the phone up and, you know, videotape them because it'd be very obvious, riffs off on something, it does happen. Maybe record that conversation. Don't put the phone up and videotape them because it'd be very obvious and the person won't do his shtick and you won't capture it. But just hit the record button in the open there and turn the phone over, by the way. You can't put it on record because you'll see the red dot. So turn it over.

It will record. And then you have this information. If you're in a one-on-one meeting with your boss So turn it over, it will record, and then you have this information. If you're in a one-on-one meeting with your boss or they're trying to set you up with respect to them trying to get rid of you and you can kind of see the writing on the wall, recording is a very powerful way to protect yourself for exactly what was said. Make sure you do something very important here. Back up your recording to a secondary device. The phone may get trashed, whatever it is, and

you have to back it up, and you have an obligation to back that up if you're going to try to pursue a lawsuit against somebody. So, you know, the tool of the phone, it's a powerful leverage piece, I will tell you, and I think I remember one instance where someone had actually videotaped a recording of one of my clients did of the incident at hand, and that was very powerful. There's an old case from years and years ago

involving Texaco, and this is a Southern District of New York case before Judge Bryant. The attorney was a very prominent plaintiff's attorney still in DC. Cyrus Mary, how are you doing? And his client recorded a racist blurp that happened in one of the executives in the C-suite. And the case obviously didn't end well for Texaco, and it was one of those, it was a recording done on some form of a device. This was before the iPhone, before cell phones.

So recording was actually permissible in New York back then. So it's gone on for some time, and people know about it, but this device is everywhere now, and employers should be well-warned that employees are going to record you and we want them to record you because we want to keep you in check with your bad behavior if you're dealing with you know an employee who's pregnant and you're trying

to intimidate that person or if you're doing god forbid you're engaging in races to bigotry etc you know we want to check that behavior. You won't get it right when it happens, but it'll eventually show up in some form of affidavit that, you know, the person did get it on tape and you engage in a racist bigoted type of statement. And there's nothing really the employer can do about it because guess what, folks, when you record something like this, I have to tell you, it's a gem, and the employers will balk at it, but it's a direct statement made by an employer as an admission of fact.

The majority of the cases I deal with are cases dealing with what's called circumstantial evidence. That's your detailed narrative. I'm trying to weld together all these little series of events to produce a strong inference that something happened. But a recording, that only happens in about 5% or less of cases.

It's an admission against interest as a legal principle under the federal rules of evidence and under state court rules of evidence, an admission against interest by an employer. And what it says, if you got the dirt on them, it's called smoking gun evidence, an admission against interest by an employer. And what it says, if it's, you know, if you got the dirt on them, it's called smoking gun evidence and you can use it. And it's a very powerful device.

Doesn't happen that often, but I suspect it will happen more often, just like it did here for Mr. Diamond. Although we don't have the presence of any type of legal case happening for him. There's no person he directed it at that's gonna be a lawsuit there, but nonetheless it's an example of an admission of direct evidence if there was one. And let's say there's

hypothetically a person here was trying to work remotely and he's commenting on that. You know, he could, he or she could potentially use the recording in some way to help their case. So direct evidence. So this news about Mr. Diamond and his exploits brings two issues to your attention. Number one, the power of your device, your phone, and how you can record to use it to your advantage as leverage. And then second, it reveals something about the company's culture here, Mr. Diamond's situation, company cultures, I'm sure not great. Oh, and by the way, I mentioned one more footnote, employee engagement. Well, guess how bad it is.

Employee engagement right now is you all have basically 75% of you or more, according to Gallup's recent poll, they do this every year, you are disengaged out of 100%. Okay, so 75% are disengaged. That's how bad the current work environment is. If you're feeling pretty shitty about it, well, you know, you're not alone. I mean, 75% of you feel this way, and that's because folks like Mr. Diamond, you know, they've run their machines like that, and you know, they don't really care about you. So again, culture in the office, how to protect yourself, use the phone as leverage.

You have power, I'm giving it back to you. It's right there all along. It just didn't know how to use it. And there you go. So hope you enjoyed this one. Again, driven by the news of what really wealthy people do all the time, making stupid mistakes. And I'm here to just talk about it because it's important in a way that matters to you. All right. Have a great week. If you like the Employee Survival Guide, I'd really encourage you

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