In recent years, the issue of secret recordings by employees has sparked considerable controversy. You may recall the recent incident involving an employee at CloudFlare, who filmed herself for nine minutes while questioning HR about her termination from the IT company. She posted the video on TikTok, where it quickly went viral. If you have not seen the video, you can view it here.
Such incidents have left many employers wondering how they can protect themselves from covert recordings by employees.
Employees often resort to secretly recording conversations following workplace disputes. And while it may be nearly impossible to prevent employees from secretly recording work-related conversations, employers can implement a no-recording policy that includes termination for violating such policy. One concern for employers, however, is that an employee fired for violating the no-recording policy might claim that the termination was in retaliation for previous complaints, rather than for the policy violation itself.
The Tenth Circuit recently addressed this issue in the matter of Spagnolia v. Charter Communications, LLC, No. 23-1190, 2024 U.S. App. LEXIS 16069 (10th Cir. July 2, 2024) (unpublished opinion)—link to opinion. Heather Spagnolia sued her former employer, Charter Communications, alleging, among other things, that she was fired in retaliation for making reasonable requests for lactation accommodation. Charter defended this claim by stating that Ms. Spagnolia was fired because she violated Charter’s policy against surreptitious recordings. The trial court granted summary judgment in favor of Charter, finding that, based on the evidence gathered, no reasonable juror could find that Ms. Spagnolia’s employment termination was in retaliation for her accommodation request. The Tenth Circuit affirmed this decision.
While the outcome of this case is beneficial to employers, it is essential to examine the facts and evidence considered by the court to understand why it ultimately sided with the employer.
According to the court’s opinion, Ms. Spagnolia began her tenure with Charter Communications in 2016. Fast forward to 2019. From April to July, Ms. Spagnolia took maternity leave under the Family Medical Leave Act (FMLA) to welcome her second child. Upon her return, she faced a common challenge for new mothers: finding a place to express breast milk. Her supervisor allowed her to use the office Wellness Room to express milk during company time (i.e., “on the clock”). However, because of ongoing construction, Ms. Spagnolia was relegated to the bathroom.
Unhappy with this arrangement, Ms. Spagnolia voiced her concerns. Another supervisor proposed Ms. Spagnolia use the company locker room as an alternative, but this solution also fell short. With no suitable option in sight, Ms. Spagnolia escalated her concerns via email, referencing a state website outlining required lactation accommodations. In response, a supervisor advised Ms. Spagnolia to use a vacant office to express her breast milk. However, the vacant office’s frosted glass windows allowed passers-by to see silhouettes through the windows, making it unsuitable for her. Eventually, construction was completed and Ms. Spagnolia resumed using the Wellness Room for her needs.
On August 22, 2019, Charter changed its policy regarding lactation breaks. The new policy required employees to “clock out” while taking lactation breaks. Charter’s policy had the potential to affect Ms. Spagnolia’s compensation as her lactation breaks averaged two hours per day, sometimes extending up to three, in addition to her lunch and regular breaks. On August 23, 2019, Ms. Spagnolia met with her supervisor to discuss the new policy and secretly recording the conversation. When Charter later discovered the recording, they terminated her employment on August 29 for violating the company’s policy against surreptitious recordings.
Ms. Spagnolia sued Charter Communications under the Colorado Anti-Discrimination Act (CADA). While CADA is specific to Colorado and differs from Title VII, the Tenth Circuit highlighted that courts apply the same standards to both. Consequently, the court analyzed Ms. Spagnolia’s retaliation claim under CADA using the Title VII McDonnell-Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
The framework used in McDonnell Douglas requires the plaintiff to establish a prima facie case of retaliation. For the sake of brevity, we will avoid an extensive analysis of the legal specifics in this case, but those interested can find the detailed elements in the court’s opinion. Once a prima facie case is established, the burden then shifts to the employer to provide a legitimate, non-discriminatory reason for the adverse action. If the employer meets this requirement, the plaintiff must then demonstrate that the employer’s stated reason is merely a pretext for retaliation.
Ms. Spagnolia argued that her email to supervisors requesting lactation accommodations constituted protected activity under CADA. She claimed that Charter’s dismissal represented a materially adverse employment action and that the termination was in retaliation for her email. She pointed out that her supervisors had emailed HR the day before the clocking-out policy change to express frustration with her lactation breaks, indicating that her actions had begun to irritate the her supervisors. In response, Charter argued that Ms. Spagnolia’s termination was because she violated the company’s no-recording policy, which was a legitimate, non-discriminatory reason unrelated to any protected activity.
The Tenth Circuit’s opinion primarily centered on the final phase of the burden-shifting framework—whether Ms. Spagnolia had presented enough evidence to create a genuine dispute regarding the pretextual nature of Charter’s reason for her termination. A plaintiff can establish pretext by highlighting “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s stated legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence and thereby infer that the employer did not act for the asserted nondiscriminatory reasons.”
Ms. Spagnolia presented three key arguments to demonstrate pretext in her termination:
First, she argued that Charter’s rationale for firing her—recording a coworker in violation of corporate policies—was implausible, claiming the company had a policy against dismissing employees for a first offense of this nature. However, the district court found that Charter does not have a blanket policy against terminating employees for a first recording policy violation, and Ms. Spagnolia had been previously warned about this policy a year earlier.
Second, she argued that Charter’s stated reason for her dismissal was insincere, pointing out that another employee who recorded a coworker in 2018 was not dismissed. The district court, however, found the incidents too dissimilar to suggest double standards—and the Tenth Circuit affirmed. The court stated that while precedents allow showing pretext by comparing the treatment of other employees, the criteria are stringent, and Ms. Spagnolia did not meet them. According to the court, the prior incident was different because it did not capture a private conversation, and there was no record of the colleague being coached on the recording policy.
Lastly, Ms. Spagnolia claimed that Charter’s reason for her dismissal was pretextual because there was no formal policy prohibiting her from recording coworkers. Despite this, the court found that Charter’s “Legal Connection” publication, distributed quarterly to HR executives, clearly stated that “it is not appropriate for any employee to record conversations in the workplace—the conduct is prohibited by the Company.”
Overall, the Tenth Circuit set a high bar for the sufficiency of evidence needed to overcome an employer’s legitimate business interest in terminating an employee for violating a no-recording policy. This Tenth Circuit opinion, although unpublished and limited in precedent to the court’s jurisdiction, offers valuable insights. Employers with a clearly written, consistently applied no-recording policy are better positioned to defend against retaliation claims. The case underscores the importance of documented policies and consistent enforcement in protecting employers from such legal challenges.
Final Note: It’s crucial to consult with experienced employment counsel when drafting your no-recording policy to ensure compliance with state and federal laws, such as the National Labor Relations Act (parts of which apply to private employers).
