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OK to fire on basis of some taped phone calls

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in Firing,Human Resources

Illinois has strict laws against recording telephone conversations without permission. But those laws allow recording if a party to the conversation believes a crime is being or is about to be committed.

In some cases, that means you can use a recorded phone call as the basis for termination—as long as there is some indication that the firing offense was bordering on illegal activity.

Recent case: Mary Carroll worked for Merrill Lynch for many years. Toward the end of her tenure with the company, Carroll complained to HR that a supervisor used vulgar language when addressing her. Carroll thought the comments might be related to either her gender or sexual orientation.

Within days, the supervisor and his supervisor were both terminated. The company then held a meeting explaining the move and told everyone to move on. It then restructured the depart­ment and assigned new supervisors.

Shortly after, Carroll became angry when she believed a co-worker had unfairly taken over some of her tasks. She called him at home and had what she later admitted was an irra­tional conversation.

The co-worker’s wife became alarmed during the call and hit the record button on their answering machine. Merrill Lynch obtained a copy of the tape and played it. Based on the recorded conversation, it fired Carroll for inappropriate behavior.

She sued, alleging, among other things, that it was illegal to tape a conversation in Illinois.

The court disagreed. Illinois allows exceptions for telephone calls that involve possible criminal activity. If the wife believed her family was in danger, she was free to record. In turn, the company was free to use the tape as the basis for termination. (Carroll v. Merrill Lynch, No. 07-C-1575, ND IL, 2011)

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