Personal voice mail messages are in the news this month. They can come back to haunt you, as Tiger Woods found out when he left evidence of his infidelity on voice mail. But what about leaving a voice mail message for a co-worker or subordinate? One court said, “Beware!” They can be smoking guns aimed directly at the employer’s wallet ...
Case in Point: Hope Ford worked as a server at Maxi's Food & Spirit Barn. She waited tables upstairs in the bar where her wages and tips were better than downstairs in the restaurant. Maxi’s was co-owned by Harry DeShone and Barbara Court. Court’s daughter also worked at Maxi’s.
One day, Ford mentioned to Court’s daughter that she was pregnant. The daughter recommended she not tell anyone for fear Ford would lose her job. Nevertheless, the daughter told her mom that Ford was pregnant.
Shortly thereafter, the daughter left a voice mail message for Ford informing her that she’d be fired at the first sign of her pregnancy. The daughter also mentioned “Harry’s Rule,” referring to co-owner Harry DeShone that, “the first time you slip, the first time you trip, the first time any sign of that pregnancy shows through, you're done.” The voice mail also warned Ford, “We'll leave you up there (in the bar) at least … usually through the third month and then it's time to go.”
Shortly thereafter, Court fired Ford, allegedly for insubordination and poor job performance.
Ford filed a claim with the EEOC for. Maxi’s denied discriminatory behavior, claiming it fired Ford strictly for her performance. Ford argued that she never received any . (EEOC v. J.H. Hein Corp. d/b/a Maxi's Food & Spirit Barn, N.D. Ind.).
What happened next and what lessons can be learned?
As you can expect, Ford and the EEOC pointed to the voice mail message, saying it was a “smoking gun” that proved the restaurant's discriminatory conduct. The court agreed and sent the case to a jury trial, noting that the case would come down to “a good old-fashioned swearing contest that can be resolved only by assessing the credibility of witnesses.”
3 Lessons Learned … Without Going to Court
What messages are safe to leave on a voice mail? Consider the following:
1. “Call me!” This is the safest voice mail. Voice mail is discoverable in litigation. Don’t leave evidence for someone to use against you.
2. “Congratulations!” This is the only safe response to an announcement of a pregnancy in the workplace.
3. “Do you have the time?” Courts have a “liability stopwatch.” It starts when the employee announces she is pregnant. It stops when an employer takes adverse action against the employee, such as a firing or demotion. In this case, the court noted the time between the two events was only nine days, a nano-second in the big picture of employment.
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