Voice RecorderHere is something you don’t see happen everyday – an instance of “butt dialing” becoming a federal case.

Specifically, an inadvertently dialed cell phone call purportedly involving discussions about unlawful employment discrimination resulted in a federal lawsuit for intentionally intercepting private conversations in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968 (18 USC 2510 et seq.).

The fact pattern for this case (Huff v Spaw, 7/21/2015) is somewhat convoluted, but it provides an important reminder to employers and employees about the importance of understanding when workplace conversations, including between managers and employees, may lawfully be recorded.

How an inadvertent cell phone call become an unlawful interception

James Huff accidentally dialed his coworker, Carol Spaw, while he was talking face-to-face with Huff’s colleague, Larry Savage. Spaw initially said “hello” a number of times, however, no one answered. Rather than hanging up, she continued to listen – for 91 minutes – to the conversations between Huff and Savage. Spaw believed the men were discussing unlawful discrimination involving Spaw’s CEO (Candace McGraw). At some point during the 91 minute call, James Huff’s wife, Bertha Huff, was also recorded after she joined a conversation with her husband. Spaw transcribed what she heard and used an iPhone to record a portion of the conversation between James and Bertha Huff (the Huffs). The Huffs brought suit against Spaw for intentionally intercepting their private conversations, in violation of the above federal statute (18 USC 2510 et seq.).

Procedurally, the district court granted summary judgment in favor of Spaw on the ground that, because James Huff placed the pocket-dialed call, both of the Huffs lacked a reasonable expectation that their conversations would not be intercepted, which is a prerequisite for protection under Title III. The Court of Appeals partially reversed the District Court’s decision in that it left in place the dismissal in favor of Spaw against the James Huff, but reversed as to his wife, Bertha Huff. Savage was not a party to the suit.

The Take-away for Employers and Employees

Spaw believed that she was recording conversation involving unlawful discrimination in the workplace – a frequent belief that often motivates employees to begin recording conversations with managers. And taking that belief at face value, recording a conversation may seem to be a noble undertaking. However, that does not mean it is a lawful undertaking.

For this reason, both employers and employees need to understand that unlawfully recording conversations is not a situation where you can get away with asking for forgiveness later rather than first getting permission.

Consider that the federal statute involved in the case provides for civil damages, which includes actual damages, any profits made by the violator or statutory damages, and the recovery of attorney fees, in addition to possible criminal liability. Similarly, a violation of Michigan’s eavesdropping statute (MCL 750.539a et seq.) may result in civil liability (including punitive damages), or criminal penalties.

And while there are exceptions and nuances to the applicability of both the federal and Michigan’s eavesdropping statute, none depend upon having a noble cause, those exceptions are often narrowly construed, and the nuances need to be thoroughly understood to avoid inadvertently violating the applicable statutes.

Contact Michigan employment attorney Jason Shinn for more information about investigating workplace misconduct or instances of possible discrimination and harassment.