Seeking workplace or career advice? Turn to an employment lawyer.
Many people turn to career advisers, not employment lawyers, when things run aground at work. But there are often legal issues underlying the workplace concerns for which career advisers don't have the training to advise. It's important to understand, attend to and counsel an individual around their workplace concerns as well as all of the legal issues surrounding them.
By way of example, following is a career advice question from a recent New York Times column called "The Workologist" that is just rife with legal issues:
My supervisor recently informed me that his request to buy some equipment through the company for his personal use had been denied because it was for nonstandard items — so he had placed the order in my name instead.... Previously he was upset when I spoke to human resources about how I should report my time (I’m an hourly employee) for his constant after-hours calls and texts seeking work support. I have begun recording our meetings without his knowledge, so it’s not just my word against his if there’s a problem later.
How do I deal with this? I’m at my first corporate job, and there’s been lots of restructuring lately; he’s my third supervisor this year. I’m actually hoping to be restructured into another department. ANONYMOUS
The responding newspaper columnist describes himself as "a guy with well-intentioned opinions, not a professional career adviser." He advises the letter-writer (whom I'll refer to as "Anonymous") to tell his supervisor he's not comfortable with his actions, to talk to HR or another supervisor he trusts, and lastly, he indicates that "secret-taping" someone may be against the law so he should proceed with caution.
How would I look at this situation and advise a client to proceed?
1. Identify short- and long-term work-related goals as well as the legal issues.
It's just a short letter but I'll deduce what I can about Anonymous's short- and long-term work-related goals. S/he wants to continue his/her career; after all, this is his/her first corporate job and s/he likely has a long career ahead. It seems s/he thinks things could work if transferred to a different department at the same company and s/he gets away from both the current supervisor and the unstable department.
Regarding the employment law issues, there are generally three types that pop out from the paragraph. The first -- the equipment purchased for non-business use -- likely implicates workplace employment policies, though if it were a grant-funded non-profit or the government involved there could be additional legal concerns. The second -- being asked to work after-hours -- relates to time-keeping and wage laws. The third -- secretly recording meetings -- implicates privacy and wiretapping laws.
My strategy, then, turns on how to achieve Anonymous's above career goals as successfully and smoothly as possible within the context of the current situation, including attending to the legal issues.
2. The legal issues
A. Secretly recording someone in Massachusetts violates the state wiretapping law, M.G.L. c. 272, s. 99, and subjects one to the possibility of criminal prosecution or civil suit.
If Anonymous recorded his supervisor in Massachusetts, he could be both criminally and civilly liable under the state wiretapping law. Not only are both of these possibilities problematic in themselves, they also reduce his leverage in negotiating something for his own benefit with his employer.
To put it another way, if you are in a position where you turn to an employer for assistance and/or to negotiate something in your own interest, it helps to do so with as "clean hands" as possible; doing so in possession of evidence that you violated both criminal and civil laws is unhelpful. That must be attended to as part of any larger approach here.
To briefly cover the wiretapping law more substantively, Anonymous could be subject to a civil suit by his supervisor "whose oral or wire communications were intercepted, disclosed or used....." M.G.L. c. 272, s. 99. And if the supervisor's wins his case, Anonymous could be subject to liquidated damages up to $100 per day for each day of violation or $1000, whichever is higher; punitive damages; and reasonable attorney's fees and costs. Id. Not good.
On the criminal side of things, it doesn't get any better. Anonymous may be subject to prosecution for "willfully us[ing] or attempt[ing] to use the contents of any wire or oral communication, knowing that the information was obtained through interception...." or for "possess[ing] any intercepting device under circumstances evincing an intent to commit an interception not permitted or authorized by this section...." M.G.L. c. 272, s. 99. Upon a conviction, one "shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both." Id. See also, e.g., Commonwealth v. Hyde, 434 Mass. 594 (2001); Commonwealth v. Jackson, 370 Mass. 502, 507 (1976).
But now that Anonymous has done it, it is important to understand and to attend to the legal implications as part of the strategic plan to help him/her through this situation. Depending upon the sophistication of the company's HR, they may very well know that Massachusetts requires so-called "two-party consent" to record someone. It would likely be advised, therefore, not to disclose voluntarily the existence of the recordings or that s/he did it (although if asked directly, lying also may be problematic and that would be a different situation to talk through).
What should be done for Anonymous's protection and career goals is to determine a plan 1) to document relevant oral conversations with the supervisor, 2) save relevant written correspondence with the supervisor, and 3) memorialize certain relevant verbal understandings with the supervisor and/or employer in writing. This is of maximum benefit to Anonymous and can help him protect her/himself now and provide some evidence (or leverage) if necessary for later.
B. The after-hours work
Anonymous suggests his/her supervisor is requiring him/her to work after-hours and he/she is an "hourly employee." Depending upon his/her exact job duties and possibly pay, the law (or just work policies) may very well require this after-hours time to paid, possibly up to and including the payment of overtime if those hours went over 40 per week.
Documenting these hours and providing this information to the employer is crucial. And equally crucial is the way in which this is approached. While the employer does have a strong interest in knowing the work hours of its employees -- after all, the wage and hour laws requires that they keep "a true and accurate record of the .... hours worked each day and each week by each employee..." M.G.L. c. 151, s. 15 -- an employer may not see that Anonymous is necessarily doing them a favor when providing this information. A good employment lawyer can help determine the best approach for this depending upon the circumstances, including assessing what pay may be due.
C. The equipment
The supervisor put down Anonymous's name as the requester of some equipment from the company even though it was for the supervisor's use (and personal use at that). As are the above two issues, this is a serious turn of events and for Anonymous's career, it needs to be handled carefully.
Anonymous likely should memorialize the exact circumstances of her/his becoming aware of the purchase (how, when, where, by whom) in written communication to his supervisor while at the same time expressing concern about it and making clear he/she was not aware of this purchase at the time of the request. Whether to then take this to the next level -- a next level supervisor or HR -- turns on a number of different things, including the likelihood of Anonymous being transferred very soon, the response of the supervisor, etc., the possible ramifications of the purchase, what the supervisor intends to do with the purchase at this point. A good employment advocate can help position Anonymous best so his/her interests and career goals are best protected.
Doorways Employment Law specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts. Contact Doorways Employment Law for an employment law consultation.