An African-American worker claimed he "accidentally" turned on a tape recorder in his duffel bag that just happened to catch two co-workers making racial comments about him in the break room. The two co-workers were fired when the tape went public.
The two fired employees sued based on the federal Wiretap Act, which prohibits the use of intercepted communications if there's reason to believe the information was illegally recorded. The 4th Circuit dismissed the suit, saying the accidental taping scenario was credible. (Weeks v. Union Camp Corp., No. 98-2814, 4th Cir., 2000)
Advice: Don't think this case gives you the green light to use a secret tape recording to prove discrimination. This type of illicit taping wouldn't fly in court too often. In addition to the federal Wiretap Act, most states have wiretapping statutes. In this case, the court was obviously trying to bend over backward to uphold the firing of these two workers.
- Good news: The clock eventually runs out on negligent hiring after you've fired worker
- Don't fire for FMLA absence, even with attendance problems
- Courts: Don't make us second-guess your decisions
- Handle accuser with care in whistle-blowing cases
- Call lawyer ASAP if your last-chance agreements require employees to give up Title VII rights