ANALYSIS Old Laws, New Apps
TECHNOLOGY’S ROLE IN EMPLOYMENT DECISIONS ABOUT EMPLOYEE SPEECH PART II
WRITTEN BY PEGGY A. BURNS, ESQ. I
n Part I of this article last month, we ex- plored the legal climate for school transpor- tation employees who use social media to express opinions about the actions of their
employers. Georgia school bus driver Johnny Cook’s rant on Facebook in May served as the context for our discussion. Cook was angry the school district had allegedly
refused to serve school lunch to one of his riders. Because the district claimed that Cook had violated its social media policy, it scheduled a pre-termina- tion meeting as a precursor to firing him. Te driver made a secret audio recording of the meeting — secret, that is, until he posted a tran- script of the recording. It’s not clear from media reports whether Cook’s taping of the meeting and subsequent publication of the transcript contrib- uted to the district’s decision to terminate his employment. Nevertheless, the news stories pro- voke questions about an employee’s right to tape a meeting without the knowledge of others involved. Te answers, and their potential implications, are the subject of this Part II.
SECRET RECORDINGS News service headlines too often read “Caught
on Tape. . .” and go on to describe driver misconduct captured by video surveillance equipment installed on the bus, or a student’s YouTube posting of the cinematic debut of an unwitting driver recorded on the student’s smartphone. Once those tapes have hit media outlets, the legality of having made them in the first place is seldom questioned. But employers are far more prone to challenge
secretly recorded tapes produced in employment context? Can your staff members legally tape conversations with supervisors and others? In what ways can they come back to haunt school districts and companies? “One-party consent” laws — under the Federal
Wiretapping Act law (18 U.S.C. Section 2511 (2) (c)), and as enacted by 38 states and the District of Columbia — allow a person to record a phone call or conversation so long as that person is a party to the conversation. In fact, it also allows the recording even if one isn’t a party to the conversation so long as one of the parties does agree that the communi-
44 School Transportation News November 2013
cation will be recorded. Georgia — where driver Johnny Cook lives — is
a “one-party consent” state. And, if you work in one of the 37 other states, or D.C., you too can be recorded for posterity by a disgruntled employee without your knowledge. In the 12 “two-party consent” states, consent
must be obtained from every party to a phone call or conversation, whether there are two or more parties. Tese states are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Neva- da, New Hampshire, Pennsylvania and Washington (Hawai’i is also in general a one-party state, but requires two-party consent if the recording device is installed in a private place).
IMPLICATIONS Employment discrimination claims often require
some proof that an administrative decision-mak- er intended to treat similarly situated employees differently because of their color, religion, gender, age or other protected characteristic. Te need to produce evidence that shows an employer actually meant to discriminate can be a real challenge for an employee. A secretly recorded conversation with an employer, who allegedly betrayed his or her real bias thinking no one else was listening, can tip the scales in an employee’s favor.
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