When it comes to secretly recording conversations at work, even in states where an employee has a legal right to do so, making a secret recording can be grounds for termination.
In March 2025, the Sixth Circuit Court of Appeals, the federal court that hears appeals of cases from Ohio, Kentucky, Michigan, and Tennessee, ruled that a nursing home was justified in terminating an employee who secretly recorded conversations with the nursing home’s executive director. The case is Bashaw v. Majestic Care of Whitehall, LLC.
Background of the lawsuit
Majestic Care operates a skilled nursing home and residential facility in Ohio. Bashaw served as the Director of Social Services there from November 2021 until she was fired in March 2022. During her employment, Bashaw raised several concerns about poor patient care. She also reported that the Center’s Executive Director, Beatrice, who was also Bashaw’s manager, was creating a "beyond toxic into hostile work environment".
The Center began an investigation into her claims of a hostile work environment and discrimination against Beatrice. During that investigation, the Center learned from Bashaw that she had made secret recordings of conversations during meetings she had with Beatrice. A week later, the investigators concluded that Beatrice had done nothing wrong and fired Bashaw.
After she was fired, Bashaw sued Majestic Care, alleging retaliation under state and federal law. The federal trial court later dismissed the case before trial, finding that the Center had fired Bashaw for legitimate reasons that were not retaliatory. Bashaw appealed the trial court’s decision to the Sixth Circuit.
Secret recordings that undercut an employer’s trust in its employee can be legitimate grounds for termination
Bashaw claimed that she was fired because she made reports of problems with patient care and harassing and discriminatory conduct by Beatrice. The Center argued that there was no retaliation; rather, the secret recordings undermined Majestic Care’s trust in its employee and raised a valid concern that she was untruthful. The Court of Appeals agreed.
The Court noted that Bashaw’s secret recordings did not violate Ohio law. It also recognized that Majestic Center did not have a company policy against recordings by employees. But the Court still found that the lack of an official company policy or a law against secretly recording conversations did not amount to proof that the company’s reasons for firing Bashaw were not genuine. “[T]he lack of an official policy or law prohibiting the behavior does not itself demonstrate pretext on Majestic Care's part...... [A]n employer may terminate an employee whose actions undermine the employer's trust.”
Caution to Employees
While in some states, including Ohio, even though it is not illegal for an employee to record a conversation the employee is participating in, that does not mean that making secret recordings is a good idea. Some employers have policies that specifically prohibit the practice. Any employee who is considering making a recording should be sure to know the law in their state and whether their employer has a policy that covers recordings at work. As an alternative to recording conversations, employees should keep contemporaneous notes that detail any issues they are concerned about at work, like discriminatory or harassing behaviors by co-workers or supervisors, or workplace safety concerns.
For a full copy of the Sixth Circuit’s opinionsee: https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0047p-06.pdf