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.
- Lawsuit-proof your firing decisions: Have those who hire or promote also do the firing
- OK to fire worker who has taken FMLA leave--but you had better be prepared to explain why
- Document poor work to make sure firing sticks
- Establish clear performance expectations so courts can judge if employee was meeting them
- Cutting someone from your team?