Friday, November 16, 2012

Can You Hear Me Now?

The facts of this particular case are so entertaining that I’ll let the record speak for itself and then get to the lesson. Merrill Lynch had two coworkers-- Mary Carroll and Jim Kelliher-- working in the same department. Carroll, who had something of a prickly personality, previously lodged a complaint with human resources that resulted in the termination of two other Merill Lynch employees. Following her complaint, she was further irritated by the fact that she was not considered for a supervisory position that opened up, although she told people she was not interested in the position and did not apply for it.

At some point Carroll felt that Kelliher, who apparently was some type of innocent bystander to the previous events, was performing some of her job duties. Rather than handle the situation within the corporate structure, or like a normal person, Carroll instead called Kelliher’s home on Thanksgiving evening in 2005 and began yelling at Kelliher over the telephone.

 Kelliher’s wife, hearing a very angry woman on the phone on which her husband was having a conversation, picked up a receiver in another room. As she listened in and became increasingly concerned at Carroll’s rants, she used the answering machine on the phone to record the conversation. She later testified that she was scared because it was Thanksgiving night at 9:00 p.m., and there was a screaming, profane, woman on the other end of the line who sounded unhinged. Accordingly, Kelliher’s wife believed that she needed to record the phone conversation in the event something violent happened. The Kellihers called the police the next day and Kelliher called his supervisor at Merrill Lynch and reported Carroll’s bizarre call.

Not being one to play defense, Carroll subsequently filed her own police report, accusing the Kelliher’s of violating the Illinois eavesdropping statute. After Carroll filed her complaint, Merrill Lynch fired her for her conduct on the call, and she escalated the situation by filing suit against the Kelliher’s and Merrill Lynch.

Ms. Carroll is the kind of employee who makes practicing employment law so gratifying. Specifically, I’m guessing that her bosses were quite happy to call her up and tell her that she was fired following these events. Moreover, her situation provides a good opportunity to analyze Illinois’ eavesdropping statute, which is one of the strictest in the country.

Illinois law prohibits recording a telephone conversation without the consent of everyone on the call, however, there is an exception which allows a party to record a conversation without the consent of the other party where there is a reasonable suspicion that the other person on the end of the call is about to commit a criminal offense against the person doing the recording. After the district court dismissed Carroll’s complaint with summary judgment based on this exception, the Seventh Circuit affirmed the decision, finding that Kelliher’s wife reasonably feared that a crime could be committed as a result of hearing a screaming woman on the other end of the phone threatening to kill her husband. So the lesson for employers is that when you have the very limited circumstance of an employee on the phone threatening to or about to commit a crime, you can record the call without their consent in Illinois, but the real lesson, I think, is that employees like plaintiff in this case usually find a way to blow themselves up without further help from the company.

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