Saturday, February 4, 2012

The birth of a retaliation case: oops, we didn't really mean that...

ABC News has reported the interesting case of an employee who asked to have time off because of a pregnancy and was told that since she did not have leave available under the FMLA, she would be treated as a voluntary resignation when she did not report to work.  The employee recorded the conversation without the company's knowledge.   Her attorney contacted the company which changed its position and granted her leave to have the baby.  The women has filed charges with the EEOC and the Connecticut Commission on Human Rights.

So, the woman had her baby in January and presumably is back to work.  Now from the company's perspective, it is looking at a very delicate situation. There are not too many employers who would be happy with employees who secretly tape conversations.  Absent a policy/rule prohibiting secret recordings, what recourse does an employer have?  States are not uniform in the approach to this issue: some states require the two parties to the conversation to consent while others require consent from only one party.  Connecticut is a state that requires consent two parties.

Do they take action based on the recording in the absence of a policy prohibiting it?  Is this an invitation to a retaliation case?  What is the realistic prospect for everyone to simply start over and to be "friends?"

This facts highlight why there has been such a dramatic increase of retaliation charges and cases.   An employee has filed a charge, and an employer is in a difficult legal position.  While filing a charge does not give an employee immunity from having to perform or unlimited job security , it often has that effect.  It would not be surprising to hear that the employee has left the company after settling her charges.

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