When employees record termination meetings, it can result in reputational damage for employers
The phenomenon of recording termination meetings and posting the footage on social media such as TikTok has captured widespread attention and raised significant concerns for employers. While termination meetings are inherently private and sensitive, the rise of covert recordings brings with it potential reputational and legal risks. So what can employers do to mitigate these risks and ensure the integrity of their termination processes?
Termination meetings are delicate situations intended to be conducted with discretion. The privacy of both the employer and the employee is paramount, not only to maintain professionalism but also to protect sensitive information. However, with the new trend of employees recording these meetings, the dynamics have shifted, bringing several potential consequences to the forefront:
Privacy concerns: Recording a termination meeting without consent can violate privacy rights. Employers must be mindful of the privacy of the employees present (such as Management/HR representatives) and uphold confidentiality.
Evidence in legal disputes: Unbeknownst to many, recordings made during termination meetings can be used as evidence in legal disputes. Recent case law, such as the Teljeur v. Aurora Hotel Group case, 2023 ONSC 1324, illustrates how courts may rely on such recordings to support wrongful dismissal claims and other employment-related issues in favour of employees.
Cause to terminate: Recording termination meetings where the effective date of termination is in the future or where working termination notice is given, could be considered serious misconduct and result in an employee being terminated for cause with no notice, severance package or employment insurance. If it turns out that the meeting does not end up being a termination meeting, this could also be cause to terminate if the employee is recording it.
Reputational damage: When these recordings surface on social media, they can damage the employer’s reputation, impact public perception and potentially lead to further scrutiny or backlash.
Criminal Code: If an employee records a meeting and is not present in the meeting and no one else has consented to the recording, the “one-party consent” rule is not met. The recording would be illegal under s. 184 of the Criminal Code. This situation could occur if the employee leaves the meeting with the recording device on so that the meeting continues to be recorded in the absence of the employee. There are certain exceptions such as for law enforcement or Court Order.
Proactive measures around recording meetings
To address this growing trend, employers must take proactive steps to set clear expectations and protect their interests. Here are some key strategies:
- Revise workplace policies: Employers should update their workplace policies to explicitly address the recording of meetings and the use of social media. Policies should outline the expectations regarding recording devices during company meetings and clearly state the consequences of violating these rules.
- Establish clear expectations: At the outset of employment, make it clear that recording meetings without consent is prohibited. During termination meetings, remind employees of their confidentiality obligations and inform them that note-taking is permitted, but recording is not.
- Create a controlled environment: Whether the termination meeting is held in person or virtually, set a controlled environment. For virtual meetings, ensure that the platform's settings prohibit recording. For in-person meetings, be vigilant about any potential recording devices.
- Stick to the script: Prepare a detailed script for the termination meeting. Adhere strictly to this script, avoiding any guarantees beyond what is included in the termination letter. This ensures that the conversation remains professional and focused in the event it is recorded.
- Conduct under assumption of recording: Always conduct termination meetings as if they are being recorded. Maintain professionalism throughout, avoid making off-the-cuff comments, and stick to the prepared talking points.
- Include a witness: Having a second person present during the termination meeting provides additional support and serves as a witness to what was said. This can be an HR professional or another manager who can take notes and provide corroborative testimony if needed.
- Reinforce confidentiality clauses: After the termination meeting, ensure that any enhanced severance packages include strong confidentiality clauses. This provides additional legal protection against the dissemination of sensitive information or disparaging comments.
Privacy laws and social media
From an employment lawyer's perspective, the legal ramifications of surreptitious recordings can be significant. Employers must navigate these situations with a clear understanding of privacy laws and employment regulations. Employers should be aware of the legal standards and ensure their policies are in compliance with provincial and federal laws.
The trend of employees recording and posting termination meetings is a growing concern that requires immediate and thoughtful action from employers. By revising policies, setting clear expectations, and maintaining professionalism, employers can mitigate the risks associated with these recordings. It is crucial to stay ahead of this trend to protect both the organization's reputation and its legal standing.
Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique in the Greater Toronto Area. Tejpreet (Tanya) Sambi is a lawyer at Minken Employment Lawyers.
