In its December 2024 issue, Washingtonian magazine named three TELG principals to its closely watched “Top Lawyers” list. Scott Oswald, Nicholas Woodfield, and Adam Carter were recognized for their representation of employees against corporations. All three have been recognized on the list for years.
Recognized attorneys:
Since 2019, Northern Virginia magazine has recognized multiple TELG principals on its “Top Lawyers” list, which highlights lawyers in Northern Virginia and D.C. Honorees are selected based on nominations from other lawyers in the area. In its 2024 issue, three principals — Scott Oswald, Adam Carter, and Nick Woodfield — were recognized.
Recognized attorneys:
Virginia Lawyers Weekly, a publication that covers legal news in the state, regularly recognizes the top lawyers located in Virginia. VLW’s Go To Lawyers are considered experts in their fields and the lawyers to turn to when needing legal help. In 2024, Scott Oswald was named a Go To Lawyer in employment law.
Recognized attorneys:
Founded in 1868, Martindale-Hubbell is a longstanding legal directory that connects lawyers with potential clients worldwide. Martindale awards ratings to attorneys based on assessments from their peers. “AV Preeminent” is the highest rating standard and signifies that a large number of a lawyer’s peers has ranked them at the highest level of professional excellence for their legal knowledge, communication skills and ethical standards.
Recognized attorneys:
By R. Scott Oswald and Austin Szabo
IMPORTANT: The following article is intended as a general summary of facts and law and not as individual legal advice upon which you should rely or act. Every case is unique and specific. This article represents our firm’s best knowledge as of April 2024.
Lately more of our law firm’s potential clients — employees who face on-the-job discrimination, harassment, or other wrongdoing — have arrived with secret workplace recordings that they believe could help to win their case.
The trend isn’t surprising: Recording events in the workplace has never been easier. Everyone now carries a phone that can record video or audio discreetly. Many meetings happen online, where simple tech tools can allow any participant to make a sneaky recording.
Plus, in an era of social media, there are fewer taboos against recording.
Very rarely, a secret workplace recording can be helpful. But mostly we get nervous when we hear that a potential client has been secretly recording events and conversations in the workplace.
Why? Because it can destroy an otherwise strong case.
Clandestine recordings may need to be fully disclosed in litigation, even if some parts are harmful to the person who recorded them — and they’re often excluded from trial evidence anyhow. Meanwhile, the mere existence of a covert recording may weaken a legal case, rather than helping it. It may end in termination and a complete loss of damages. It could even prove that the recorder broke the law.
For these reasons, employers lick their chops when they hear about secret recordings. In general, we advise potential clients to stop making workplace recordings immediately and — if we agree to proceed with their case — we start thinking about damage control.
Below are some factors that should dissuade you from making hidden recordings in your workplace. The short version: It’s too risky, and there are better ways to gather the evidence you need.
If you’ve already made a secret recording, however, don’t panic. We’ll outline the steps you should take.
Consideration #1
It depends partly on where you are when you make the recording, and also on where the other participants are, but secretly taping a workplace phone call or a Zoom meeting may be a crime.
Different states have different wiretapping laws. In permissive states, at least one participant in (let’s say) a phone call must consent to its taping. If your state follows this baseline rule, and if everyone is in the same state, your own consent is enough to record a call in which you’re participating.
But if you’re in an “all-party” consent state, everyone on the call must agree.
These days, with cell phones and work-from-home, it’s hard to know where everyone is. If two or more states are involved, it’s also hard to predict which state’s law will apply.
For instance, imagine that you’re working in Virginia, a one-party state, and you try to record a call with your boss — but she happens to be at her vacation home in Pennsylvania, an all-party state.
Or suppose your boss is driving when you reach her, and she crosses state lines during the discussion? Even experienced judges have trouble sorting out this stuff.
If it turns out that you’ve broken the law, the consequences can be severe:
In some limited circumstances you might be shielded by the National Labor Relations Act (NLRA), which might trump wiretapping laws if you made the recording in collaboration with a fellow worker as part of a “protected concerted activity.” That doesn’t apply in most of the examples we see, however.
Meanwhile, running afoul of wiretapping laws isn’t the only way a secret workplace recording might turn out to be illegal.
If you record trade secrets or classified information for non-allowed uses, for instance, you could be in violation of various laws. And if you signed a confidentiality agreement, your employer might argue that you have breached your contract.
Consideration #2
Just because a secret recording wasn’t illegal doesn’t make it usable evidence.
Proving that a recording is authentic and unaltered, for instance, can be difficult and expensive — especially now that artificial intelligence can create realistic audio and video, making claims of fakery more credible.
If your employer asserts that you’ve manipulated a recording, you might need to hire costly experts to convince a court to allow it into evidence.
What’s more, if you edited a recording and didn’t preserve the untouched original — or if you made multiple recordings but kept only the ones that supported your claims — you could be accused of spoliation, or destroying evidence. A judge could exclude any tainted recording, and might impose sanctions or even dismiss your case.
Recordings also may be booted from evidence because they include “hearsay,” a term for certain statements made outside of proper legal proceedings. The rules around hearsay are complicated, and admissibility will depend on what you’re trying to prove. But again, the legal back-and-forth will burn time and resources.
Our point here: It’s tough to get a court even to consider weighing whatever you’ve recorded.
Consideration #3
Let’s say you have a secret workplace recording that you made without breaking the law, and it seems viable as courtroom evidence.
You’re OK, right?
Not necessarily. If your recording violated your employer’s policies, as expressed in its employee handbook or elsewhere, you may still have ruined your case. Some companies have clear rules against making surreptitious recordings, while others may argue that you’ve broken a broader rule.
You won’t risk jail time by violating company policy — but you could face many of the other legal consequences that apply to criminal activity.
In particular, if your employer views secret recordings to be a fireable offense, it’ll likely argue that it owes you nothing (or close to nothing) even if it loses, because of the “after-acquired evidence” and “unclean hands” doctrines we mentioned above. Plus, as before, you could be fired if you’re still employed by that company.
As with wiretapping laws, it’s possible that an employer’s no-recording policy could be trumped by the NLRA, which protects certain types of organizing and self-protection by collaborating workers — though we don’t see too many cases like this.
Meanwhile, beyond purely legal arguments, a judge or jury might simply dislike you for breaking the rules, making it less likely that you’ll win your case at all. It’s true that fact-finders must balance all the relevant factors; your secret recording might end up looking trivial compared to, say, sexual harassment by your manager. It all depends.
Finally, even if you’re not penalized for having hit “RECORD,” a judge or jury may be unimpressed by content of the secret recording. What you view as a smoking gun mightn’t convince an outside observer who lacks the context and workplace history that you have.
Alternatively, an outside observer could conclude that your employer is indeed at fault — but also that your own behavior or strident tone, as revealed on tape, was a big part of the problem.
So a secret recording isn’t a good way to prove your case. Here are some better ways to gather the evidence you might need.
FIRST, call an employment lawyer. You’ll get most of the following tips, but you may also get extra advice that fits your unique situation.
SECOND, if you can, start taking detailed notes during or immediately after any meeting or event where you believe discrimination, harassment, or something else illegal is happening. Write down the actual words that were said. If possible, do this in plain sight: The mere presence of a notetaker may help to deter a wrongdoer. Be sure to record the names of anyone who witnessed the problematic behavior.
If it’s an official meeting, consider sending minutes or an after-meeting report to the participants. If that doesn’t seem wise, at least send an email to yourself so that your notes will get time-stamped by a computer. Keep a printout of everything you write, so that your employer can’t easily delete the records — and if it isn’t against company policy, send a copy to your personal email, too.
Keeping a day-by-day log is another good way to record events, and can be very useful later as a reference. For ongoing harassment in particular, a log will help to show a pattern. Keep your tone as neutral as possible: Just record the facts.
THIRD, if the behavior you’re suffering or witnessing is clearly against company rules, start protesting it in writing and, as a further step, look in your employee handbook for other ways to report it. It’s generally illegal to retaliate against employees for opposing or reporting wrongdoing, so you may gain powerful legal protections when you do this.
Some employees hesitate to complain because it might backfire. If you don’t report things like sexual harassment to higher-ups, however, your case may be harder to win. And if you are retaliated against, you’ll likely have an extra legal claim — one that’s often easier to win in court.
FOURTH, discuss your experience in real time with witnesses, co-workers you trust, and possibly friends or family members. It’s always useful to get another perspective, and it could mean that your allies will be available to testify later, if needed, about what you told them at the time.
And FIFTH, start printing out or otherwise saving documents that could be relevant to your claims, such as offensive emails. Take only documents that are already available to you as part your regular job — don’t break into anyone else’s email, for instance, or take anything that’s clearly confidential, like customer data. Don’t alter the documents in any way, but keep separate notes on what you believe each document might prove.
You might reasonably ask: Don’t some of these methods also produce hearsay, just like a secret recording would? Yes, but they’re more easily reconstructed for use in a court, especially if they also reside in your employer’s files. They’re less likely to be found illegal or inadmissible, or to trigger a dangerous argument about after-acquired evidence.
In other words, they provide a clearer pathway to winning your case.
For starters, do NOT delete or alter any recordings, no matter what. Even if you think you’ve violated the law, don’t destroy any evidence. It will come back to haunt you.
Talk to an employment attorney as soon as possible. A secret recording doesn’t automatically kill your case: The outcome depends heavily on the facts, your employer’s policies, and the actual content of the recording. It also depends on your goals, some of which could be reachable without the risks of litigation. Every situation is different.
One client came to us with secret recordings of the sickening racial and sexual epithets he endured regularly, along with physical abuse, from his supervisor and co-workers. The recordings weren’t illegal, but he had violated his employer’s policy by making them. We advised him to stop recording immediately.
In the end our client won sizable damages for his suffering from a hostile work environment and illegal retaliation. The judge relied on the recordings to discredit the sworn denials of our client’s supervisor, defeating the employer’s “he said/he said” arguments.
Our client was happy he won the hostile-environment claims in his case, as proved by the recordings — but he was still terminated from employment as a result of having secretly recorded the conversations.
This wasn’t a typical case. Indeed, our firm almost never proceeds with litigation when a client has violated laws or policies against secret recordings. Only clear proof of predation, assault, or a crime like fraud — or a recording that is protected under the NLRA — might make us consider it.
When speaking to us, or to any employment lawyer, you should disclose every single workplace recording that you’ve made, and why. And you should stop making new ones. Once hired, your lawyer will likely ask you to hand over all the recordings for safekeeping.
Next, rack your brain for any signs that your employer knew, or could have known, that you were making any of these recordings.
Maybe you used your cell phone to tape a discussion with your boss, for instance, and placed the phone face-up on the desk between you? So maybe that wasn’t a secret recording after all?
Finally, and crucially, provide as much backup evidence as you can: Notes, logs, documents, names of witnesses, and so on.
In sum, get ready to make your case without relying on any secret recordings that you made. A good lawyer will provide realistic advice about the obstacles you face, and will suggest a path forward.
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R. Scott Oswald is managing principal of The Employment Law Group, P.C., a law firm that represents employees in disputes with their employers. Austin Szabo is an associate at the firm.
By Kellee Boulais Kruse and Briana L. Scholar
Last week, the U.S. Supreme Court significantly loosened the standard for a workplace action to be considered discrimination under Title VII of the Civil Rights Act of 1964.
With its opinion in Muldrow v. City of St. Louis, Missouri, the court wiped away decades of lower-court rulings that held that employees can prove illegal bias only after establishing that a job action has caused them “materially significant” harm — a judge-invented test that, in practice, generally required a pay cut or demotion.
No such hurdle should ever have existed, wrote Justice Elena Kagan in her Muldrow opinion, which was joined by five other justices and drew concurrences in the judgment from the remaining three.
Under Title VII, Kagan said, aggrieved employees must show only “some harm respecting an identifiable term or condition of employment,” with no requirement that the harm be significant or “serious, or substantial, or any similar adjective suggesting … a heightened bar.”[1]
Muldrow concerned a St. Louis police sergeant who claimed she was transferred, on the basis of her sex, to a less desirable position without any reduction in her rank or pay.
According to the courts below, all the resulting harms the sergeant cited — including a loss of prestige, worse duties, a worse schedule and a loss of perks including a take-home vehicle — were “only minor changes in working conditions,” in the words of the U.S. Court of Appeals for the Eighth Circuit, and therefore not actionable.[2]
But Title VII gives no free pass to minor discrimination, according to the justices in Muldrow: “‘Discriminate against’ means treat worse, here based on sex,” Kagan wrote. “But neither that phrase nor any other [in Title VII] says anything about how much worse.”[3]
Clearly, then, discriminatory transfers are illegal under Title VII as long as some harm occurs. What other job changes are likely to be actionable, if they cause harm?
Below, based on our reading of Muldrow, we list five other types of workplace action that — if rooted in discrimination — are newly blessed for litigation under the venerable civil rights law.
Smart plaintiff-side attorneys probably won’t file suit over just one of these actions, unless it’s truly egregious. And the damages for such claims remain to be seen. Still, an accumulation of these wrongs could make for a strong Title VII case, even if an employer hasn’t touched its employee’s title or pay.
1. Putting an Employee on a PIP
Before Muldrow, defendants could cite plenty of opinions that said being put on a performance improvement plan, or PIP, isn’t enough — without a harm deemed “significant” — to support a claim of discrimination, even if it was done for discriminatory reasons.
For instance, in Jensen-Graf v. Chesapeake Employers’ Insurance Co. in 2015, the U.S. Court of Appeals for the Fourth Circuit affirmed the dismissal of the plaintiff’s claim of a discriminatory PIP because the employee “failed to allege that she received lower pay, was demoted, was passed over for a promotion, failed to receive a bonus, or [was] given significantly different responsibilities” as a result.[4]
After Muldrow, however, a PIP may be considered discriminatory if an employee can link it to any workplace harm — not just a change in rank, salary or something else “significant.”
Some companies exclude employees on PIPs from applying for transfers, for example: If an employee could cite a specific opportunity that they missed, and for which they were otherwise qualified, this could meet the new Muldrow standard.
Similarly, Muldrow seems to recognize professional reputation and prospective advancement as cognizable areas of harm. If an employee can show that a PIP affected their standing with managers, that could be enough to support a claim.
What’s more, Justice Brett Kavanaugh, in his concurrence, appears to allow for squishier areas of harm like an employee’s satisfaction and “interest level.”[5] If supported by evidence, such harms could bolster an argument for damages.
2. Removing Supervisory Duties
Before Muldrow, a loss of supervisory duties wasn’t considered “materially adverse” by many courts, and thus was a dubious basis for action under Title VII.
For example, in Joiner v. Ohio Department of Transportation in 1996, the U.S. District Court for the Southern District of Ohio found that an employee couldn’t sustain a discrimination claim because his “grade level, salary, and benefits remained the same,” even though there was “some evidence [his] job duties and work environment changed, including … the loss of supervisory responsibility.”[6]
In her Muldrow opinion, however, Justice Kagan squarely framed the St. Louis sergeant’s post-transfer change in supervisory responsibility — not a removal from supervision, just a change in its nature — as a cognizable harm.[7]
And in her litany of appellate decisions that improperly “rewrote Title VII,” Kagan disapprovingly cited a case where a school principal was forced to supervise fewer employees yet wasn’t found to have been injured enough to sustain a claim.[8]
It’s unclear whether, under Muldrow, a diminished supervisory role is itself the injury, as a pay cut would be, or whether some resulting harm must also be pleaded — networking opportunities or prestige, for instance, as the sergeant in Muldrow argued.
Either way, a removal of supervisory powers can now be found to be a discriminatory action.
3. Imposing Harsh Schedule Changes
Before Muldrow, even disruptive schedule changes generally weren’t enough, by themselves, to succeed in a claim of discrimination under Title VII.
In 2012, for example, the U.S. District Court for the Southern District of New York put it bluntly in Albuja v. National Broadcasting Co. Universal: “Where the change in schedule does not occasion a reduction in wages or job responsibilities, unfavorable schedules are a ‘mere inconvenience’ and not an adverse employment action.”[9]
Along with a change in supervisory duties, however, the sergeant in Muldrow suffered unwelcome shift changes because of her transfer: She lost her regular Monday-to-Friday schedule, which Justice Kagan described as a “material benefit.”[10] And once again, in her list of wrongly decided appellate cases, Kagan included a matching illustration — a shipping worker who is forced to work only at night.[11]
Post-Muldrow, therefore, schedule changes can be an adverse action. Some concrete harm should be pleaded: Justice Kavanaugh’s suggestion of harmful “effects on family obligations”[12] could be a good starting point.
4. Downgrading Job Duties or Work Conditions
In our experience, employers often discriminate by giving unwanted, low-satisfaction work — and lots of it — to disfavored employees, even while maintaining their pay and title.
Before Muldrow, it was tough to claim Title VII discrimination on this basis. For example, in 2019, the Southern District of New York ruled in Smith v. City of New York against a Black police officer who was relieved of training duties and assigned to deliver mail instead, saying that his argument about a loss of prestige “amounts to nothing more than subjective dissatisfaction with his work assignment.”[13]
The U.S. Court of Appeals for the Fifth Circuit, meanwhile, said it straight out in Southard v. Texas Board of Criminal Justice in 1997: “Undesirable work assignments are not adverse employment actions.”[14]
Except now Muldrow says otherwise: The change in the St. Louis sergeant’s work, and specifically the fact that her new job was less “prestigious” and more “administrative,” was listed first among the allegations that Justice Kagan said could meet Title VII’s injury requirements “with room to spare.”[15]
The terms and conditions of an employee’s job, Kagan wrote, are “nothing less than the what, where, and when” of employment.[16] So if the what of a job changes, we have an opportunity for actionable harm.
As an example, Kagan cited a 1999 case from the Fourth Circuit, Boone v. Goldin, in which an employee was assigned to work at a large wind tunnel — which, again, Kagan called an injury under Title VII.[17]
After Muldrow, it’s safe to assume that bad work assignments — to the extent that they’re discriminatory and harmful — can be properly pleaded in support of a Title VII claim. This also could apply to the denial or withdrawal of remote work, depending on circumstances.
5. Withdrawing Perks
Before Muldrow, the removal of fringe benefits, without more, generally couldn’t support a claim of Title VII discrimination.
In 2013, for instance, the U.S. District Court for the District of Puerto Rico found in Irizarry-Santiago v. Essilor Industries that an employee’s loss of a company car, even in combination with other slights, didn’t meet its standard.
“Federal courts repeatedly hold that an adverse employment action must affect more than de minimis aspects of an employee’s work,” the judge wrote, lumping the employee’s harms into the category of “trivial, subjectively perceived inconveniences.”[18]
But Muldrow also involved a take-home vehicle, and the Supreme Court’s evident rejection of the Eighth Circuit’s description of its loss as “a minor alteration[] of employment” should make lower-court judges hesitate before finding any perk removal to be “de minimus.”[19]
Beyond cars, the removal of career-related fringe benefits, such as training opportunities or educational reimbursement, will provide even stronger examples of a harmful change to “terms and conditions” of employment, in our opinion.
Conclusion
Muldrow makes it risky for employers to take any of the five job actions listed above — and, indeed, any discriminatory job action whatsoever — against an employee protected by Title VII, which is exactly as it should be.
In short, it’s no longer viable to make work miserable for disfavored employees while leaving their pay and title untouched. Muldrow is a full-on rejection of that shabby ploy and, in our opinion, more corporate defendants will face juries as a result.
Some things remain unchanged, to be sure: The requirement for significant harm still applies to claims of retaliation under Title VII, for instance. And there are still gray areas, including the question of damages for harms that previously weren’t seen — by judges, not juries — as “materially significant.”
So is the juice here worth the squeeze? For many employees seeking justice, it certainly will be. And Muldrow makes the squeeze a lot easier.
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[1] Muldrow v. City of St. Louis, Missouri, No. 22-193, 2024 WL 1642826, at *5 (U.S. Apr. 17, 2024).
[2] See id. at *4.
[3] Id. at *5.
[4] Jensen-Graf v. Chesapeake Employers’ Ins. Co., 616 F. App’x 596, 598 (4th Cir. 2015).
[5] Muldrow at *9.
[6] Joiner v. Ohio Dep’t of Transp., 949 F. Supp. 562, 567 (S.D. Ohio 1996).
[7] Muldrow at *3–4.
[8] Id. at *5.
[9] Albuja v. Nat’l Broad. Co. Universal, 851 F. Supp. 2d 599, 608 (S.D.N.Y. 2012).
[10] Muldrow at *4.
[11] Id. at *5.
[12] Id. at *9.
[13] Smith v. City of New York, 385 F. Supp. 3d 323, 336 (S.D.N.Y. 2019).
[14] Southard v. Texas Board of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997).
[15] Muldrow at *7.
[16] Id. at *5.
[17] Id.
[18] Irizarry-Santiago v. Essilor Indus., 982 F. Supp. 2d 131, 136 (D.P.R. 2013)
[19] Muldrow at *4.
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Kellee Boulais Kruse is principal of The Employment Law Group, P.C.; Briana L. Scholar is an associate at the firm.
(Note: This article has been edited slightly from the version published by Law360, and carries a different headline.)
On February 22, 2024, Assistant Attorney General Brian M. Boynton delivered remarks at the 2024 Federal Bar Association’s Qui Tam Conference. During those remarks, Boynton announced another record year for DOJ’s False Claims Act enforcement efforts. Specifically, Boynton announced, in 2023 alone, nearly $2.7 billion was recovered under the FCA and included the resolution of 543 matters — the most FCA matters ever resolved by DOJ in a single year. Boynton further announced that, in 2023, DOJ began investigating 712 qui tam lawsuits (the third highest number ever) and opened, on its own, 500 new FCA matters (an all-time record high). He also took the opportunity to announce DOJ’s FCA enforcement priorities for 2024.
Enforcement Priorities
Moving into 2024, Boynton signaled that DOJ has no intention of slowing its efforts down and announced three primary categories of FCA enforcement priorities:
>> View full story on The National Law Review
[ADDITIONAL COVERAGE]
From Law.com (February 23, 2024)
The Federal Bar Association’s seventh annual qui tam conference focused on the government’s involvement in False Claims Act cases following a record-breaking year for settlements and judgments obtained by the Department of Justice.
The two-day conference featured panels that touched on each stage of the qui tam process, from vetting whistleblowers to calculating damages and what developments from 2023 are influencing how attorneys are approaching those steps.
Brian Boynton, principal deputy assistant attorney general for the Department of Justice’s civil division, said the government’s involvement in FCA suits has continued to grow, with the DOJ in fiscal year 2023 recovering almost $2.7 billion from 543 FCA settlements and judgments, more than any other year to date and a 54% year-over-year increase. For the fourth time in the past decade, he said, the department began investigating more than 700 qui tam lawsuits in a year.
From Bloomberg Law (March 4, 2024)
Courts are pushing back on the Justice Department’s practice of concealing whistleblower-generated investigations for years, exposing tension over a law that some DOJ officials say judges fail to grasp.
The conflict spilled into public view recently when prosecutors from two of the most active districts for attracting whistleblower complaints of corporate fraud — Philadelphia and Boston — said that federal judges are rushing the department to lift seals on the cases because they don’t understand the complexities of the Civil War-era False Claims Act.
“Everything takes a long time. The judges really don’t get that,” said Joshua Levy, the acting US attorney for Massachusetts, during a Feb. 23 legal conference. “I’ve actually asked for an opportunity to brief the judges on this issue, and they don’t really want to hear from me.”
Andrell Forelien is the Human Resources manager at The Employment Law Group® law firm. With over 15 years of experience in the HR industry, Ms. Forelien is a trusted advisor in the matters of compliance, talent management, and employee relations. She is committed to staying ahead of industry trends to ensure organizations remain agile and adaptive in the ever-evolving landscape of people and work.
Throughout her career, Ms. Forelien has specialized in the implementation and optimization of HR information systems (HRIS). She is a strategic thinker and adept problem-solver with the ability to navigate complex HR challenges with professionalism and integrity.
Ms. Forelien has dual senior professional certifications from the Society for Human Resource Management and the HR Certification Institute. She has earned a Bachelor of Arts in sociology and a Master of Science in industrial psychology/org leadership. She believes her prior experience and education are a testament to her knowledge and dedication to upholding the highest ethical and professional standards in HR leadership.
Ms. Forelien is passionate about social justice and the defense of people who are most vulnerable.
She is originally from Jacksonville, Florida, and loves dance, science fiction novels, documentaries, and especially music.
