When an employee knows she’s skating on thin ice and may soon be fired, she’s likely to ponder the possibilities of filing a lawsuit. The probable first step: gathering up evidence she thinks will help her case. That may involve making copies of confidential information or downloading it from the company computer systems.
She may also record conversations in an effort to catch supervisors and others making statements that could bolster a lawsuit later.
Employers don’t have to tolerate this. If you have a good policy that protects confidential information and forbids secret recordings, you can terminate the employee as soon as you find out what she did. Simply put, surreptitiously gathering evidence in violation of your rules isn’t protected activity and can’t be the basis for a subsequent retaliation lawsuit.
Recent case: Chyrianne, who is black, was a very successful medical device sales representative. Working on just one account in Florida, she earned more than $300,000 and won praise as a high-performance employee. When she heard about an opening in Ohio, she applied and moved.
At first, Chyrianne was assigned to a lucrative account. Then the account was pulled and her income fell. She was placed on a performance improvement plan (PIP) when her sales declined.
She suspected race bias or some other form of discrimination and filed an EEOC complaint. Among her claims was that the PIP was retaliation for complaining about discrimination and was an effort to set her up for failure. She pointed out that no white men lost part of their territories.
Chyrianne decided to play detective and started secretly recording conversations between herself and customers, such as doctors. She also recorded conversations with company employees. During one recorded conversation, Chyrianne was told not to discuss her ongoing pay dispute with customers. Around the same time, she learned that company policy forbade secret recordings.
The original EEOC action was pending and still in the discovery phase when Chyrianne’s employer found out about the recordings. It reviewed the recordings and determined making them violated company rules. At the same time, it concluded that she also hadn’t completed her performance improvement plan. It terminated her, citing both reasons.
Chyrianne then added retaliation to her claims, arguing that the very act of recording conversations she could use as evidence of discrimination was a separate protected activity.
The court disagreed. It said the employer was within its rights to fire Chyrianne for her evidence-gathering activities, even if she could show she was unfairly placed on the PIP. The court said failing to complete the PIP was a legitimate unrelated and justified reason for her eventual termination. (Jones v. St. Jude Medical, et al., No. 11-4211, 6th Cir., 2012)
Final note: In this case, the employer dodged liability largely because the employee did something that justified her termination.
Include a no-unauthorized-recording rule in your electronic communications policies. Clearly state that employees may not record any conversation without permission from all participants. You may also want to remind employees that in some states, secretly recording conversations is a felony.
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