GETTING IT ALL ON TAPE : ON THE JOB MORE WORKERS RECORDING THEIR CONVERSATIONS.

Byline: Diana Kunde The Dallas Morning News

More and more these days, employers are finding out the hard way that the bulge in Joe's jacket pocket may not be his calculator.

It could be a microcassette recorder.

Last fall, the disclosure of secretly recorded conversations among Texaco Inc. managers created a public outcry and led the firm to settle a racial discrimination suit for $176 million. They were recorded making what appeared to be disparaging remarks about African-American employees and discussing the possible destruction of documents pertinent to the suit.

Although few recordings have that much drama or financial impact, anecdotal evidence from lawyers who represent both companies and workers suggests that the Texaco manager who clandestinely captured the meetings on tape isn't unique.

A combination of improving technology that makes taping possible, job cuts and declining workplace loyalty are leading more workers to secretly tape, the lawyers say.

``Texaco was nothing new. I've seen (clients) come in with tape recorders that look like regular wooden pencils, yellow pencils,'' said Gregg Rosenberg, a Houston plaintiff attorney.

Dallas attorney Douglas McGarry, who represents employers, doesn't find the phenomenon surprising.

``With all the transition in jobs, there isn't the trust there used to be,'' he said. ``The old Texas handshake deal has long gone out the window.''

A random nationwide survey of 603 adults conducted recently by Brown University, for instance, found that 70 percent said companies are less loyal to their workers than a decade earlier.

Taping is legal in Texas and therefore admissible in court as long as one person in the conversation consents, said Steve McCown of the employment law firm Littler, Mendelson, Fastiff, Tichy & Mathiason in Dallas. Wiretapping, or electronically eavesdropping on someone else's conversation, is illegal unless done by a law enforcement agency with a warrant.

``I could record our telephone conversation and not tell you, and it's not per se illegal, nor would anything prevent admissibility in court,'' McCown said. ``Now, if you have a conversation with someone else and I break in, that's illegal.''

Tapes submitted as part of a typical employment discrimination suit aren't always a boon for the plaintiff, though, and can even backfire if they don't demonstrate the employee's claims, attorneys say.

Still, recordings have tipped the balance in job-discrimination and sexual-harassment suits, where justice frequently boils down to one person's word against another's.

``I truly wish more of the people who came to see me had tape recordings,'' said Steve Gugenheim, a Dallas attorney who represents workers.

Even in California, where taping is illegal without the knowledge of all parties, plaintiff attorney Cliff Palefsky said he's used secretly recorded tapes to prove an employer perjured himself.

``As a management lawyer, I try to suggest to the jury that it's a setup. . . . I try to take the offensive as best I can in those circumstances,'' said Michael Maslanka, who represents employers for the Dallas law firm of Clark, West, Keller, Butler & Ellis.

Recent changes in federal court procedure require disclosure of evidence early in the proceedings. Defense attorneys routinely request any pertinent taped conversations.

Tapes that are turned over sometimes don't help the plaintiff, said Janette Johnson, a lawyer who represents workers.

``The type of stuff that would be good on tape - the angry confrontation with the racial or sexual epithet - it's hard to know when those things are going to come at you, unless you had an employer who repeatedly went off the handle,'' Johnson said.

Employees are likely to think about taping after disparaging remarks have been made, she said, and a supervisor may sound reasonable on tape, putting the employee's testimony of previous harassment in doubt.

``They're called into the discharge meeting, and by then the employer more than likely has his ducks in a row,'' Johnson said.

She, too, has had tapes help in the courtroom. A jury decided in favor of one client who contended that he was let go as retaliation for protesting discrimination.

His case was boosted by a taped telephone conversation with a supervisor who expressed reluctance to give him a job reference. Johnson's client had another piece of electronic evidence - a computer disk allegedly showing that a negative performance review was written after the manager was laid off but dated earlier.

It's considered unethical for plaintiff attorneys to suggest taping. Most say they inform clients,if asekd, that it's legal.

And for employees with itchy fingers on the ``Record'' button, Maslanka advises: ``Juries don't like sneaks. . . . So if you tape it, by God, make sure it's important.''

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Photo

Photo: Dallas attorney Steve Gugenheim tells clients to use tape recorders like this one in gathering evidence.

Knight-Ridder Tribune Photo Service