Tuesday, November 20, 2012

Recording Rants

New ImageThe ubiquity of devices capable of recording conversations gives renewed importance to surreptitious taping, although in most states it remains legal for one participant in a conversation to record it
without informing the other. But in those states (about a dozen) where it is not legal, issues touching on the employment relationship will continue to arise. Memories of Linda Tripp.  Last month,  Carroll v. Merrill Lynch, was handed down by the Seventh Circuit involving unauthorized taping under an Illinois statute.

While the backstory is more involved, the case boiled down to the recording of a profanity-laced phone tirade on Thanksgiving by one Merrill Lynch employee to another at his home. The latter’s wife recorded the call, and she and her husband played it back at Merrill the next day before reporting it to the police. Merrill promptly fired the caller, who promptly sued Merrill and the husband and wife.

The claim against the couple was violation of the Illinois law prohibiting recording without consent of all parties. Plaintiff’s claim against Merrill was based on the theory that Merrill violated the statute when its agent requested and listened to the previously recorded conversation. Merrill successfully argued that, because the originally recordation was exempt from the statute, the subsequent playback was also exempt. 

Anyhow, the court affirmed summary judgment against the plaintiff because Illinois has a statutory exception allowing recordation when the recording party has a reasonable suspicion that a crime is being, or is about to be, committed. Given the extremeness of the plaintiff’s language, the
court found that the wife fell within that exception.

There are a number of subsidiary issues that might be worth exploring in another setting, but the main take-away from the opinion is that it's dangerous -- even if not necessarily wrongful -- for employees to record threatening conversations from co-workers in a number of states.  And it is dangerous -- but not necessarily wrongful -- for employers to act on the basis of such conversations.

From the employer’s standpoint, maybe the safer course would have been not to listen to the recorrding but rather to ask the caller about it. After all, the contents of the call are fair game even if the recording isn’t. That said, it might be too much to ask a manager to forebear listening to this kind of thing while HR and Legal figure out whether it’s appropriate to do so.

As important, some other state eavesropping laws --  Delaware, Florida, Maryland, Massachusetts,
Montana, New Hampshire, Pennsylvania -- all lack an express  “fear of crime” exception (although one might be judically added).  


Thanks to my RA, Allison Martin, for her help on this.


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