|
Taping
My Boss
by Dr. Lynne
Curry
Question:
My boss plans to fire me because of a personality conflict and
it’s just a matter of time. Once he does, I plan to sue. I’ve
copied every file in the place and have at home on disk everything
he’s got on his computer system. I bought a micro-cassette tape
recorder that fits in my jacket pocket and tape the conversations
my boss and I have so I’ll have a complete package to give to
the attorney I’ll select. What else should I do to prepare to
sue?
Answer:
If you want to win, you need to avoid shooting yourself in the
foot. Because many employees wonder if they can secretly
record conversations with their bosses, I contacted four
attorneys. Two of the four suggested that by surreptitiously
taping conversations, you take a huge risk. According to Seattle
trial attorney Mathew Knopp, "Although the law varies from
state to state, many states have privacy acts that require consent
from all parties prior to taping personal or phone conversations.
Washington’s Privacy Act requires that all parties
consent." Anchorage attorney Bill Azar agrees. Says Azar,
"An employee who records his boss’s conversations without
consent both violates both Alaska Statute Title 42 and the Alaska
Constitution’ Privacy Clause, making any evidence gathered
inadmissible."
Attorney Tom Van
Flein interprets Title 42 differently, pointing out "The
statute states a person may not use an eavesdropping device
to hear or record all or any part of an oral conversation without
the consent of a party to the conversation," allowing any one
person in a conversation to tape record a conversation without the
other’s knowledge." "In fact," says Van Flein,
"Although making secret recordings is a strategic decision,
because doing so may harm one’s credibility, unilaterally
recorded conversations have been used in both criminal and civil
cases. In Norcon v. Kotowski, privately recorded conversations
helped an employee win a sex harassment suit."
However, Van
Flein and attorney Chris Hyatt both believe you need legal
assistance before going further. A client who wants positive
results, says Hyatt, visits an attorney early. "If an
employee has a valid claim against an employer, any good attorney
can then suggest exactly what the employee should gather to make a
good case. I ask employees to bring a copy of their personnel
file. I also suggest they talk with other employees and learn
whether the employer has treated past employees differently. These
co-workers may later become great witnesses and generally talk
more freely with the employee before he or she is fired."
Van Flein agrees
with Hyatt and adds that you also need to provide your attorney
your company’s personnel policy manual and any emails, memos,
letters, photographs and other documentation that relate to the
personality conflict or related unfairness issue so you can get
on-target advice.
Although all
attorneys agree you can make copies of your personnel file, the
company manual and any emails authored by you or sent you, they
urge you to exercise caution before copying other company
materials. In doing an Internet search on this issue, I uncovered
multiple cases in which courts ruled against employees who copied
confidential employer records.
As an example in
Bonger v. American Waterworks, Bonger photocopied and took offsite
approximately 3,000 pages of confidential company personnel files
before being fired. When she sued, the Court ruled in favor of her
employer in a summary judgment before trial, stating that
employees should not benefit from their own wrongdoing, in this
case the removal of company property. In similar decisions,
including those of both trial and federal appeals courts in
McKennon v. Nashville Banner Publishing company, court rulings
favored employers in part because angry ex-employees came into
court with "dirty hands" by unfairly taking off-site
copies of company records.
So, stop taping
and copying and instead call an attorney. Outline the facts and
ask how best to prepare for your upcoming suit in ways that don’t
damage your future case.
|
