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  1. #1
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    Jan 2018
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    Default Fired Over Confidentiality Issues After Recording a Conversation With a Supervisor

    My question involves labor and employment law for the state of: California.

    I worked for a non-profit mental health organization for two years. I loved my job. When the department employees had performance reviews, I received high praises along with a raise in the department. At first my boss and I were on good terms, but quickly noticed she wanted to create divide within our department (us VS them). I did not play into the role she wanted for me.

    To the part on how I got fired. I have ADD, and I am embarrassed about it. But luckily for me when we had our meetings she would encourage us to take photos of flowcharts and at times I would record meetings because my note taking sucks! Then one day she accused me of making a mistake and it was clear to me that I did not make the mistake. As usual I took my phone and recorded the conversation in the event I was wrong and to go over how not to make it happen again. Our meeting didn't go well, she kept accusing and I told her that she was incorrect. Then we have a one on one meeting the following week to go over work. These meetings are supervised due to my boss not being able to get along with others. Anyway she began to attempt to throw me under the bus when I said she was mistaken and I could play how our conversation went as I had it recorded. My boss said I want to hear it, and her supervisor told me that it was against the law.

    I told him that I had no idea and that I record school lectures all the time. So asked me to play it so I got up went to my desk because I forgot to bring it (ADD) and when I returned to the conference room I played the recording at her request. She said that she would file a grievance ( i think she got embarrassed) and her supervisor said I should file a grievance too, but I chose not to because I saw how all other complaints were handled (they weren’t). Soon after I got pretty sick.

    I was out for about a week or so. Then about two weeks later I was asked by HR and my supervisor handed me a letter with HR and the VP in the conference stating that I was being fired for violating penal code 632, engaging in criminal conduct and committing a breach of trust and likely to have compromised client information as it was often part of conversation that took place with my supervisor. I was heart broken. I have never been fired from a job let alone a job I loved. So now when I try to find a job I am considered no-rehire, so now I am marred. Can't find a job so I filed a claim for unemployment as was denied benefits (not surprised). I knew I would have to do an appeal but do I have a case? Thank you for reading my long winded explanation.

    I didn’t think I would find myself here, but HERE I am. Oh well that’s my story. I would appreciate any advice or suggestions.

  2. #2
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    Mar 2013
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    Default Re: Fired Over Confidentiality Issues After Recording a Conversation With a Superviso

    Quote Quoting cjwells
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    do I have a case?
    No.

    First of all, you can be fired for any reason as long as it doesn't involve illegal discrimination.

    Second, you may have been OK recording meetings and school lectures but recording the one-on-one conversation between you and your boss was definitely illegal.

    http://leginfo.legislature.ca.gov/fa...sectionNum=632.

    You were legitimately fired for misconduct (committing a criminal act) that made you ineligible for unemployment.

    Worse, you could be prosecuted and, if convicted, face up to a $2500 fine and up to a year in jail.

    And you know what, even if the recording had been legal, you could have been fired for it. Employers don't like being shown their mistakes and tend to get rid of people that do the showing.

  3. #3
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    Mar 2012
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    Default Re: Fired Over Confidentiality Issues After Recording a Conversation With a Superviso

    Quote Quoting cjwells
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    do I have a case?
    55% of EDD denials are overturned on appeal. You always have a chance.

    However, if you told this story on your UI application and added more during your phone interview, you're going to be your own worst enemy.

  4. #4
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    Jan 2018
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    Default Re: Fired Over Confidentiality Issues After Recording a Conversation With a Superviso

    I understand the termination, but wouldn't I still qualify for unemployment ? I wasn't warned, no write ups, I have witnesses and employee reviews that can attest to who I was a an employee?
    My supervisor has supervised meetings due to her behavioral issues. She had a one on one with me alone which is not part of the agreement. And I also got permission to record from upper management (quality assurance).

  5. #5
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    Oct 2016
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    Default Re: Fired Over Confidentiality Issues After Recording a Conversation With a Superviso

    No. You broke the law (maybe more than one). It doesn't matter in the least how good an employee you were before you broke the law.

    Example a 5 star employee walks in one day and punches a co-worker. Would you be surprised if that employee was disqualified for unemployment?

  6. #6
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    Jan 2015
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    Default Re: Fired Over Confidentiality Issues After Recording a Conversation With a Superviso

    Okay, first of all, you did a dumb thing, but you are not "marred." And you did not need to wait until you couldn't find a job (you will doubtless be able to find another job eventually in this hiring market) to file a claim for unemployment insurance. Usually, you would be much better off to be fired than to quit a job, because for unemployment purposes, when they fire you, in order to keep you from receiving benefits, the employer has to show one of two things. They have to show that they gave you warnings, that you were informed about policies, that you knew that what you did might very well result in your termination, and that you chose to do it anyway. OR they have to show that you did something so egregious that it was worthy of a firing as soon as they found out you did it, something that can be considered gross misconduct, in other words, something that is so blatantly misconduct that if you were of semi normal intelligence you would know that it was wrong to do it even once without prior warnings not to do it ( setting the building on fire or punching out your supervisor are commonly used examples. Stealing from the employer is another.)

    Unfortunately, one party consent recording is not legal in your state. That's what you were doing, taping conversations where the other party did not know they were being taped. And you were unwise enough to 1) engage in a verbal altercation with your supervisor and 2) criticize her and argue with her, and show her undeniable proof that you knew you were in the right, because "... I have a recording of what was said and you DID NOT say that!" And then they were mad enough at you to want to get rid of you, and they had you. Because it simply isn't legal to tape someone without their permission in your state. You were doing an illegal thing, they could prove it, and you were out, without much of a chance for unemployment benefits (which cost the employer money).

    The only thing I can think of that would help in an appeal, possibly, is if your employer knew, prior to this stand off, that you were taping things and were by having this knowledge and not warning you or exhibiting concern for possible violation of patient confidentiality, condoning your behavior. Even if your behavior is illegal, such as smoking marijuana on the job, or stealing from the employer, if they had prior knowledge of your doing this, and had elected not to act against you for this behavior in the past, then they are sometimes considered not to have a valid gross misconduct reason to terminate you. You mentioned that you were encouraged to take pictures of information in meetings, did you ever discuss with your employers that you were making tape recordings of conversations? Did someone tell you it was all right? You don't need to call witnesses, but you certainly need to put this conversation in the record.

    Of course in any appeals hearing, you would say you did not know that what you were doing was not appropriate (e.g. was illegal) and that you did not want to lose your job, that you loved your job and that you always did it to the best of your abilities.

    And of course, your chances of winning unemployment in appeal is not great. We all know ignorance of the law is not a very good excuse for violating the law. In today's electronic age, a surprising number of people will do this recording on the job and don't know that this sort of thing is illegal in some states (though not in all.) But the unemployment system isn't really about enforcing the laws otherwise or punishing people for breaking those laws, just about determining if they had a valid misconduct reason to terminate you. Submit your request for an appeal in a timely manner, saying only that you wish to appeal, what you've been told to here. Your next step will be a hearing. Carry though with the appeals process (remember to make weekly certifications for weeks as they pass) as far as you can.

    In the meantime, don't go overboard with deciding your future is ruined by this job loss. In some cases where you've been fired, especially when unemployment benefits are not easily forthcoming, it is better to jump on the first horse that comes by. What I mean is even though you've had a job you loved and you really really want to find an equivalent job in the same field, you may want to take something else, something you can get quickly and easily to put between yourself and this job.

    That would give you something else to talk about in interviews and get you a better reference from a recent place of employment. Always from now on, when discussing this job, you will of course want to downplay the drama of the problems with your supervisor and the actual reason you were terminated, and upsell the wonderful experience you got working here, how many things you learned, and what a positive environment it was, until it wasn't and you left due to a disagreement with a supervisor...quick pivot to another subject. I wouldn't make being ADD a big part of my revelations I provide potential employers.

    Good luck to you, you've been unwise, but not truly criminal and you can recover from this experience, whether or not you are approved for unemployment. There is a need for good people to work in the mental health field who enjoy it and have a true calling, just remember, some people who are not the most stable or competent can lurk in any profession, dealing with them is always a big part of any job.

  7. #7
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    Jan 2018
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    Default Re: Fired Over Confidentiality Issues After Recording a Conversation With a Superviso

    I did a dumb thing is an understatement, and with regard to being marred perhaps I was being a little melodramatic lol!
    BUT thank you Ator, it just hurts, as I worked my butt off for the organization because i truly cared.
    I will take everything into account, and post how the appeal process went. I have asked for a copy of my employee record in the meantime.

  8. #8
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    Mar 2012
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    Default Re: Fired Over Confidentiality Issues After Recording a Conversation With a Superviso

    Quote Quoting cjwells
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    wouldn't I still qualify for unemployment ?
    Maybe.

    For your appeal REQUEST, just submit, "the determination dated mm/dd/yy is wrong. I want an appeal hearing scheduled." You'll get a hearing packet or access to the hearing file. You'll be able to review it with a critical eye. In about 30% of the files I look at, the claimant was responsible for their own denial by talking too much. Quite often the employer doesn't return EDD's call (not that they really didn't call, but no one can get through easily, and I'm sure the employer just gives up).

    The burden of proof is on the employer to prove that you committed a bad act with a preponderance of the admissible evidence that rises to the level of misconduct. Most claimants start out admitting to what they did, and then make excuses for themselves. At that point the employer doesn't have to prove squat.

  9. #9
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    Jan 2018
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    Default Re: Fired Over Confidentiality Issues After Recording a Conversation With a Superviso

    Thank you Chyvan. I have a co-worker that will testify that QA came to her stating " i got her fired because i told her it was okay. It was not malicious in nature. I thought misconduct in California had to meet four things in order to meet misconduct in California?

    I plan to appeal, thanks again Chyvan

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