I work in medical device sales and am a top performer at my company,
My manager has managed through fear,intimidation and bullying. He often times would say discriminatory and demeaning things and then end his tirade by saying "if you tell anyone I said this, I will fire you."
Eventually I opened up to a colleague. The colleague told my boss.
The next week I was put on a performance plan. The plan entailed lies and exaggerated circumstances as a basis as to why I was being put on this plan.
I then sent a response to HR that entailed the work conditions I have had to work under, and a line for line response to the performance plan the proved my bosses statements we not true.
I also told them that I had recording of my boss in his anger laced tirades and made them aware that I have a disability.
This week, I received a call from HR. They informed me they were terminating me because it is illegal to record someone without their consent in Washington state.
I am under the impression there is a "grey area" if you are recording someone to prove discrimination and retaliation.
Do I have a case?
RCW 9.73.030 makes it unlawful with the following exception: "communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands,"
The case law is not very well-developed on the exception, however. You would need to clearly show that your recording was of "unlawful requests or demands." I'm not sure that profanity-laced tirades would qualify.
You will have a difficult time prevailing on a claim against your former employer on the facts you have provided.
Washington state law makes it a crime for a person to record any “private conversation . . . without first obtaining the consent of all the persons engaged in the conversation.” The only statutory exceptions to this law relate to (1) the recording and reporting of emergencies and criminal threats, and (2) recordings made by news reporters in the course of their duties. Neither of these exceptions applies to you.
No, this is not a particularly “gray” area in the state of Washington. If you surf the internet for a few minutes, you can easily find people who will say otherwise. But those people haven’t read the Washington state statute. Some of them are talking about the rule in other states, where the laws are different. Others are expressing wishful thinking. But the statute is clear.
The only circumstances under which it is legal for you to record a private conversation without the consent of all parties in the state of Washington are:
-Emergency communications to report crimes, disasters, fires, and medical emergencies;
-Communications that are themselves crimes, such as blackmail, stalking, and threats of bodily harm;
-Hostage negotiations; and
-News gathering activities made by professional reporters.
There is no statutory exception that would allow a private party to record communications that constitute employment discrimination. And employment discrimination is a common enough occurrence that if the state legislature had wanted to have this exception, they would have included it.
The one possible legal claim I can think of that you might be able to raise is a retaliation claim. It is illegal for an employer to retaliate against an employee who has objected to illegal discrimination. Here is the timeline you would set out:
Time 1: The boss harasses you on the basis of your disability.
Time 2: You complain to a coworker about the harassment. (That is legally protected activity.)
Time 3: Your coworker notifies upper management about your complaint.
Time 4: The employer places you on a PIP that you do not deserve.
Time 5: You object to the PIP, and in the process of objecting to the PIP, disclose that you have a recording of the boss’s tirade.
Time 6: The employer terminates you.
If this timeline is accurate, you may have a valid claim that the employer engaged in illegal retaliation when it placed you on the PIP. And the employer didn’t know about the illegal recording at the time, so the recording can’t have been the basis of the employer’s decision.
You will have a more difficult time bringing a retaliation claim as to the actual termination. The legal rule is, when the employer could have terminated you for a legitimate reason (such as the illegal recording), the employer wins. This is true even if the employer’s “actual” reason for terminating you was not legitimate.
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