Hi Reader,

Let’s say something uncomfortable happens at work or you’re seeing repeated incidents by a manager or co-workers that’s leaving you feeling off. You’re noticing off comments, inappropriate behavior, or in some cases, straight-up harassment or discrimination.

You realize it might be important to document such cases, perhaps to protect yourself in the event you have a contentious departure from the company. But what are you legally allowed to do? Can you screenshot a Slack thread, or forward work emails to your personal account? Should you record meetings to keep as video or audio evidence?

This week’s newsletter dives into all of these questions, which we discussed in our past conversation with the seasoned employment lawyer, Justin Clark of JLC Employment Law.

Let’s cover some important takeaways on your rights and responsibilities around documentation. If you want to hear our full conversation with Justin, episode links here: YouTube | Spotify | Apple​

*Disclaimer: Justin is a lawyer, but he's not your lawyer, and nothing here is legal advice. He's barred in California, which has stronger employee protections than most states, so check the law where you actually work.

1. Your own complaint isn't company property

If you're worried the record of your complaint will disappear, a screenshot is generally fine, as long as the communication doesn't include confidential company information, IP, or trade secrets. An email documenting your own experience is a record of what happened to you, and Justin doesn't believe that a court of law would treat that as company IP.

So if you do take a screenshot, make sure it doesn’t contain any confidential business information or company IP. You should also carefully review your employment documents and your company's employee handbook to see what language companies had you sign up for to pre-empt their employees from doing this.

Note: this is a sponsored newsletter. If you check them out below, it means a lot to us and helps keep our newsletter going!

2. Never email yourself the client list

Justin was blunt about this: "do not send any company IP or anything to your personal email address."

Earlier in his career when Justin worked on the employer’s side of workplace disputes, he prosecuted trade secret misappropriation cases against employees who emailed themselves company material on their way out. In one particular case, the departing employee sent themselves a spreadsheet listing every single vendor and company customer. Client lists, client contacts, client numbers - all of this can be considered a trade secret.

Doing this hands your employer a claim against you and weakens your own defense, right at the moment you may be hoping to bring a case against them.

3. The company is probably holding the evidence for you

Most companies have data retention policies covering how long they legally need to keep logs of Slack messages, email, and other workplace communication. Once you put the company on notice that you may have a legal claim, they’re required to preserve everything related to it.

If a company deletes that material after being put on notice, it's called evidence spoliation, and by Justin's telling this "can turn a case on its head."

However, keep in mind that these policies are only really applicable if you end up pursuing legal action against the company, not necessarily if you’re simply trying to, let’s say, negotiate a higher severance package without involving lawyers. So make sure you’re doing your own due diligence on collecting documentation (without violating any company policies of course, reference point #1 above).

4. If it was already deleted, your case isn't over

We asked Justin about disappearing messages and auto-delete settings a lot of companies set on workplace Slack, WhatsApp, and other communication platforms. If the material was deleted in the ordinary course of business, long before anyone told the company to preserve records, the company can say it doesn't have it.

That doesn't necessarily doom you if you were hoping to preserve evidence. Those conversations still happened, so it moves into the same territory as verbal evidence, where the work becomes reconstructing what was said. Though not as strong, the next best thing you can do is to write down an account of what happened in your own words.

5. Secretly recording a one-on-one can be a misdemeanor

We asked Justin whether you can just record things on your phone so the company can't trace what you captured.

"California is a dual consent state, which requires consent by both parties to record a conversation."

You don't need the other side to affirmatively agree. Announcing it works: "Hey, I'm gonna record this conversation. I just wanted to let you know." If they stay on, that's implied consent, the same way it works when a customer service line tells you the call is being recorded. Nobody says yes to those, and staying on the line is the consent.

In California, recording someone who has no idea it’s happening is a misdemeanor. There are exceptions depending on whether there’s an expectation of privacy, like a conversation in a crowded coffee shop where anyone nearby could overhear. But a closed-door one-on-one doesn't qualify.

6. AI notetakers are still an open question

We brought up the notetakers that often join calls now, and the claim that some of them work around consent rules because they capture a transcript rather than audio or video.

Justin didn’t address this question head-on without doing more research, as this involves looking closely at case law on whether an AI transcript rises to the level of a recording.

What he did say is that "the law frequently lags behind changes" in technology, partly because cases take a long time to be adjudicated while tech keep moving ahead. Until the courts catch up, treat a notetaker on a sensitive call as an unsettled legal question rather than a clean workaround.

We covered way more in our conversation with Justin, listen here: YouTube | Spotify | Apple​

Connect with Justin on LinkedIn here or visit his website: jlcemploymentlaw.com​

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Warmly,

Gerta & Alex

Founders, YourNegotiations.com

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Send them our way and we’ll thank you with $250 for each person who becomes a client. No cap.

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