"Protected Activities" Questioned

Estelle Davis (not her real name) took a page from the Linda Tripp book. She surreptitiously tape-recorded a conversation with an unsuspecting target. Not a friend, though, but her supervisor.

Davis, who works for a waste company in the Mid-Atlantic area, did so because she suspected that discrimination was the reason why she had lost out on a promotion. When the area manager heard about the recording episode, he fired her on the spot.

Here's the rub: Title VII of the Civil Rights Acts of 1964 forbids "retaliation" against an employee for "assisting or participating" in the investigation of a workplace discrimination complaint.

To claim retaliation, an employee must prove three things: (1) he or she engaged in a "protected activity," (2) an adverse employment action happened and (3) a causal relationship exists between (1) and (2).

The intent is to protect employees who simply use the law to protect their rights. If secretly recording workplace conversations is a protected activity, then an employer cannot punish a worker for doing so without incurring liability.

Take the case of Irwin Heller who got word from a departing manager that he would be demoted. Suspecting age discrimination, Heller decided to tape-record future meetings with his boss, John Parker.

Sure enough, Parker demoted Heller, who then told some co-workers that he had recorded his encounter with Parker. He also boasted he had talked with a "big-time lawyer" who could make a "big-time case" against the employer. One of these co-workers told Parker about Heller's plans, and Heller was sacked soon afterwards.

Heller sued the company in federal district court for age discrimination and breach of an employment contract. The jury didn't think Heller proved age discrimination, but felt he had been wrongfully discharged. The district judge, however, ruled for the employer despite the verdict, saying that the company had "good cause" to fire Heller based on his "deceptive and thoroughly unprofessional" behavior.

An appeals court overturned the decision. It brushed aside the employer's argument that "an employee would never be justified in tape-recording conversations with his superiors and discussing a possible lawsuit ... with ... his colleagues." On the contrary, the court stated that Heller indeed may have been "justified" if he believed that he was merely gathering evidence in support of a possible age-discrimination claim.

However, things don't always work out in the employee's favor. For example, a federal appeals court in San Francisco upheld a ruling against an employee who removed confidential files from his supervisor's desk, photocopied the contents and showed the materials to a co-worker.

The court said that, although the employee was justified in preserving evidence, he failed to explain why he showed the pilfered documents to a co-worker who was about to be laid off or why he needed evidence of the company's layoff policy where he himself had not been slated for lay-off.

Before punishing an employee for secretly tape-recording workplace conversations (which is different from punishing an employee for ignoring orders not to use a tape recorder at work), the employer should consider why the employee decided to tape the conversation, whether confidential matters were discussed, whether the actions were disruptive, how the employee used the information and whether state law prohibits such surreptitious activity.

Making secret recordings can cost an employee more than losing a job and walking away from a lawsuit empty-handed. The employee risks a countersuit by the employer and co-workers.

A bank employee in California sued his employer and co-workers for sexual harassment. During pre-trial proceedings, he turned over numerous tapes containing more than 100 secretly recorded conversations with his supervisors and co-workers. The defendants fired back, claiming invasion of privacy and violation of the California Privacy Act. The trial court threw out the plaintiff's claims, and awarded judgment to the defendants for $132,000. The decision was upheld on appeal.

Three thousand miles eastward, a Connecticut court ruled in similar fashion when an employee was sued by her employer and co-workers for invasion of privacy. The defendant had secretly recorded their confidential conversations.

In denying her motion to dismiss their suit, the court said: "An employee retains some zone of personal privacy, particularly vis-a-vis conduct of fellow employees motivated by ... personal concerns. It may be a practical reality that employees have little reasonable right to expect that business-related discussions with fellow employees will remain protected from disclosure to their employer. But employees do have a reasonable expectation that discussions will not be secretly recorded by fellow employees with whom they are chatting."