fingerprints biometrics

Employees Sue for Fingerprint Use

Employees of Peacock Foods, an Illinois-based food product manufacturer, recently filed a lawsuit against their employer for alleged violations of Illinois’ Biometric Information Privacy Act. Under BIPA, companies that collect biometric information must inter alia have a written retention policy (that they follow). As part of the policy, the law states that they must delete biometric information after they no long need it, or three years after the last transaction with the individual. Companies also need consent to collect the information under the Illinois law, cannot sell information, and if shared must get consent for such sharing.

According to the plaintiff-employees, Peacock Foods used their fingerprints for a time tracking system without explaining in writing how the saved fingerprints would be used, or if they would be shared with third parties. According to the employees, this violated BIPA’s requirement for explaining -in the consent request- how information would be used and how long it would be kept. The employees also alleged that Peacock Foods did not have a retention schedule and program in place for deleting biometric data. The employees are currently seeking class certification.

Putting it Into Practice: This case is a reminder that plaintiffs’ class action lawyers are looking at BIPA and possible complaints that can be brought under the law. To address the Illinois law – and similar ones in Texas and Washington – companies should look at the notice and consent process they have in place.   

This post was written by Liisa M. Thomas & Mukund H. Sharma of Sheppard Mullin Richter & Hampton LLP., Copyright © 2017

For more Labor & Employment legal analysis, go to The National Law Review

Senate Confirms Lee Francis Cissna to lead USCIS

On Oct. 5, the U.S. Senate approved the nomination of Lee Francis Cissna to lead the U.S. Citizenship and Immigration Services agency (USCIS) on a bipartisan vote of 54-43. All Republican senators supported the nomination and were joined by Democrat Senators Donnelly (IN), Heitkamp (ND), Manchin (WV) and McCaskill (MO). Senators Cochran (R-MS), Cortez Masto (D-NV) and Heller (R-NV) did not vote.

 

This post was written by Robert Y. Maples of Greenberg Traurig, LLP. All rights reserved, ©2017

For more legal analysis go to The National Law Review

US Attorney General Jefferson Sessions Issues New Guidance On Transgender Employees

Yesterday, U.S. Attorney General Jefferson Sessions issued new guidance reversing the federal government’s former position that gender identity is protected under Title VII.

In a memo sent to the heads of all federal agencies and the U.S. attorneys, the attorney general stated that as a matter of law, “Title VII does not prohibit discrimination based on gender identity per se.” The memorandum further stated the DOJ will take the position in all pending and future matters that Title VII does not protect against discrimination on the basis of gender identity or transgender status.

Sessions’ memo explains Title VII expressly prohibits discrimination on the basis of sex but makes no reference to gender, and that courts have interpreted “sex” to mean biologically male or female. Sessions concluded employers may differentiate on the basis of sex in employment practices, so long as the practices do not expose members of one sex to disadvantageous terms or conditions of employment to which the other sex is not exposed. The memo highlighted sex-specific bathrooms as such an example. Sessions explained while Title VII prohibits “sex-stereotypes,” insofar as that sort of sex-based consideration causes disparate treatment between men and women, Title VII is not properly construed to proscribe employment practices that take into account the sex of employees, but do not impose different burdens on similarly situated members of each sex.

This guidance reverses and withdraws previous guidance by Attorney General Eric Holder in a December 15, 2014 memorandum in which Holder stated Title VII prohibits employers from using “sex-based considerations,” such as gender identity, in employment decisions. Sessions’ memo also runs contrary to the current position of the U.S. Equal Employment Opportunity Commission, which treats discrimination against an employee on the basis of gender identity, including transgender status and sexual orientation, as violations of Title VII.

Currently, there is a split of authority in the courts on whether sex discrimination under Title VII includes discrimination on the basis of gender identity and sex stereotyping, and thus prohibits discrimination against transgender individuals. The U.S. Supreme Court will likely have to resolve the issue in the future, but may issue some relevant guidance this term in the Gloucester County School Board v. G.G. case (involving issues of a school district’s obligations to a transgender student).

While it is now the position of the Department of Justice that Title VII protections do not extend to transgender individuals, employers should still be careful to avoid discrimination on the basis of gender identity, as the law is still unsettled. As Attorney General Sessions’ memorandum notes, there are still federal statutes that prohibit discrimination against transgender persons, and states and localities may have additional protections. Moreover, the EEOC could still bring suit against employers who engage in transgender discrimination.

This post was written by Allison L. Goico & Hayley Geiler of Dinsmore & Shohl LLP. All rights reserved., © 2017
For more Labor & Employment legal analysis, go to The National Law Review

Chicago City Council Committee Approves Hands Off-Pants On Ordinance to Protect Hotel Employees

On October 2, 2017, the Chicago City Council Committee on Workplace Development and Audit approved an amendment to the Municipal Code (the “Ordinance”) that, if approved by the full City Council, will require hotel employers to equip hotel employees assigned to work in guestrooms or restrooms with portable emergency contact devices and develop and implement new anti-sexual harassment policies and procedures. The Ordinance is in response to multiple reports of sexual assault and harassment targeted at hotel employees by hotel guests.

The Ordinance in its current form will require hotel employers to (1) equip employees who are assigned to work in a guest room or restroom, under circumstances where no other employee is present in the room, with a panic button (at no cost to the employee) which the employee may use to summon help from other hotel staff if s/he reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence; (2) develop, maintain and comply with a written anti-sexual harassment policy to protect employees against sexual assault and sexual harassment by guests; and (3) provide all employees with a current copy of the hotel’s anti-sexual harassment policy, and post the policy in conspicuous places in areas of the hotel where employees can reasonably be expected to see it.

With respect to the anti-sexual harassment policy mandates, employers must develop a policy that:

  • Encourages employees to immediately report to the employer instances of alleged sexual assault and sexual harassment by guests;
  • Describes the procedures that the complaining employee and employer shall follow in such cases;
  • Affords the complaining employee the right to cease work and leave the immediate area where danger is perceived until such time that hotel security or the police arrive to provide assistance;
  • Affords the complaining employee the right, during the duration of the offending guest’s stay at the hotel, to be assigned to work on a different floor or at a different station or work area away from the offending guest;
  • Provides the complaining employee with sufficient paid time to (a) file a complaint with the police against the offending guest, and (b) testify as a witness at any legal proceeding that may ensue as a result of such complaint;
  • Informs the employee that the Illinois Human Rights Act and Chicago Human Rights Ordinance provide additional protections against sexual harassment in the workplace; and
  • Informs the employee that it is unlawful for an employer to retaliate against any employee who reasonably uses a panic button or exercises any right under the Ordinance.

Employers in violation of the Ordinance would be subject to a fine between $250-$500 for each offense, and each day that a violation continues constitutes a separate and distinct offense.

Consequently, it is critical that Chicago hotel employers monitor the status of this Ordinance, which is now pending before the full City Council. If passed and signed into law, the Ordinance will take effect within 90 days of signature. Employers should consider preparations for providing panic buttons to those employees protected by the Ordinance and training hotel employees on their use, and revisiting anti-sexual harassment policies, whether stand-alone or included in employee handbooks, to ensure compliance with the Ordinance’s mandates. Additionally, employers should consider providing updated anti-sexual harassment and anti-retaliation training to all employees, including those who are assigned to work in guest rooms or restrooms, to ensure that all employees fully understand their employer’s policies and procedures.

This post was written by Shawn D. Fabian & Michael J. Roth of Sheppard Mullin Richter & Hampton LLP., Copyright © 2017
For more legal analysis go to The National Law Review

Positive Developments – EUTM

Trademark owners should take note of two new types of trademark protection available in the European Community as of October 1, 2017.

1. Certification Marks – although it has always been possible to register certification marks in a few individual EU member states, it was previously not possible to register a certification mark, for certification services, with the EUIPO.  This will change as of October 1, 2017 when it will now it will be possible to register certification with the EUIPO, covering all EU member states.  European Union certification marks are defined as marks that are “capable of distinguishing goods or services which are certified by the proprietor of the mark in respect of material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics, with the exception of geographical origin, from goods and services which are not so certified.”

2. Marks no Longer Need Graphic Representation – it will now be possible to file for sound, hologram, motion, and multimedia marks; marks can now be represented in any form using generally available technologies.  Unfortunately, it is still not possible to file for tactile, smell, and taste marks in the EU.

This post was written by Monica Riva Talley of Sterne Kessler © 2017
For more legal analysis go to The National Law Review

Airlines’ Shrinking Seat Space May Increase Likelihood of Head Injuries

While the Federal Aviation Administration (FAA) has addressed protection from head injuries for flight attendants, according to a recent article, it has not addressed the impact of shrinking seat designs on the safety of passengers. A second article states that no seat in coach meets the FAA’s standards for the space required for flight attendant seat safety.

Graphic Sheds Light on Impact of Smaller Seats and Rows on Safety

Embedded in the regulations governing commercial airline safety is a graphic that may offer evidence that smaller seats and rows on airplanes may affect passengers’ safety. The DOT graphic shows the “head strike zone” for a seated flight attendant and is intended to offer guidance on seat design to reduce the risk of injury to flight attendants during takeoff and landing but apparently a similar analysis has not been undertaken as to passengers.

The head strike zone is the space that must be kept clear so that the occupant’s head avoids contact with an adjacent seat in the event of an impact. The graphic suggests that shortening the distance between passenger seat rows may have increased the likelihood of a passenger suffering head trauma from the seat in front.

Lawsuit Seeks FAA Rules on Minimum Seat and Aisle Sizes

FlyersRights.Org filed a petition for rulemaking requesting that the FAA set rules on minimum seat and aisle sizes. In its petition, FlyersRights.org documented that economy class seat pitch, that is the distance between a point on one seat and the same point on the seat in front of it has shrunk from an average of 35 inches to 31 inches and in some airplanes, 28 inches. Among other things, FlyersRights.Org argues that passengers may not be able to evacuate quickly in a crash due to the cramped seating. Another concern is the risk of passengers developing potentially dangerous blood clots in their legs.

The FAA declined to draw up regulations on seat size, arguing that its rulemaking authority does not extend to comfort – and that safety tests indicate the smaller seats pose no danger. The FAA also maintains that flight attendants and passengers have the same injury protection regulations.

FlyersRights.Org filed a petition for review with the U.S. Court of Appeals for the District of Columbia, challenging the FAA’s refusal to engage in rulemaking and its unsupported conclusions about passenger seat safety. In recent opinion, the Court ordered the FAA to reexamine whether shrinking seats have safety consequences and to provide scientific evidence as to why narrower aisles and tighter seats are not safety issues.

This post was written by Bruce H. Stern of STARK & STARK, COPYRIGHT © 2017
For more legal analysis go to The National Law Review
Call Recordings

FTC Provides Guidance to Social Media Influencers in Live Twitter Chat

Influencer marketing is the popular practice of using individuals with large social media audiences—known as “influencers”—to advertise products and services through their social media accounts. The Federal Trade Commission (FTC) has made it clear that influencers must clearly and conspicuously disclose their relationships to brands when promoting or endorsing products through social media. To emphasize this point, the FTC sent letters to 90 influencers and marketers earlier this year reminding them of their obligation to make appropriate disclosures on ads. The FTC has also provided Endorsement Guides with answers to frequently asked questions from advertisers, ad agencies, bloggers, and others.

Most recently the FTC hosted a live Twitter chat to answer questions and provide guidance on influencer marketing. The FTC covered a number of topics during the chat, from the use of the hashtag “#ad” as a disclosure to built-in disclosure tools on popular social media platforms. Key takeaways from the Twitter chat are:

  • Using “#ad” is a sufficient disclosure, as long as it is hard to miss in the post.

  • Even if an influencer posts from abroad, U.S. law still applies if it is reasonably foreseeable that the posts will affect U.S. consumers.

  • Built-in tools such as the “Paid” tag on Facebook and “includes paid promotion” mark on YouTube are not sufficient to disclose that a post is an ad.

  • For Snapchat and Instagram posts, the FTC suggests superimposing a disclosure over the images. For a series of images, a disclosure on the first image may be sufficient, as long as it stands out, and viewers have time to see it.

The Twitter chat followed shortly after the FTC announced its first settlement with two social media influencers, Trevor Martin and Thomas Cassell, for endorsing the online gambling service CSGO Lotto without disclosing that they were the owners of the company, as well as paying other well-known social media influencers to promote the company without requiring them to disclose the payments in their posts.

Click here to read a transcript of the questions and the FTC’s responses during the official Twitter chat.

This post was written by Edward J. McAndrewPhilip N. YannellaKim Phan & Roshni Patel of Ballard Spahr LLP Copyright ©
For more legal analysis go to The National Law Review

Cannabis Prop 65 Liability: Lessons Learned from the Dietary Supplement Industry

The cannabis industry appears to be next on the liability “hit list” under California’s notorious Proposition 65 statute. In June 2017, more than 700 Prop 65 notices were served on California cannabis businesses. Companies in this emerging market should start mitigating risk under Prop 65 now. Fortunately, lessons can be learned from the dietary supplement industry’s expensive Prop 65 battles over the past decade.

California’s Prop 65, also known as the Safe Drinking Water and Toxic Enforcement Act, requires a warning on all products that contain chemicals known to cause cancer or reproductive harm, even in amounts a fraction of what is deemed safe by federal standards. Prop 65 has caused havoc within the dietary supplement and herbal product markets over the past decade, led by a cottage industry of “bounty hunter” attorneys who have weaponized the statute, ostensibly in the public interest but in reality as a lucrative for-profit business. These bounty hunters are now turning their attention to cannabis. Though amendments to the statute were adopted in 2016 for the purpose of reducing this abuse, Prop 65 litigation will continue and cannabis companies must stay vigilant.

Many businesses faced with the necessity of using a Prop 65 warning have no concern with the impact that a warning may have on sales or with consumer confidence in the product. After all, who would look twice at a Prop 65 warning on motor oil or insect repellent? Like the dietary supplement industry before them, however, many cannabis businesses will resist including a warning that the product contains a chemical known to cause cancer or reproductive harm. Many cannabis products rely on the consumers’ belief that the product is harmless and even therapeutic. For many, this will be an important business decision that may give rise to expensive mistakes − a decision should be made with an understanding of the basis for Prop 65 liability and exposure.

What Is Prop 65 and What Does It Require?

Prop 65 was passed by California voters in 1986 after an aggressive lobbying campaign by environmental and public health activists. The stated purpose of Prop 65 was to improve public health. The general consensus, however, is that Prop 65 has placed an undue burden on California businesses while achieving no significant impact on public health over the past 30 years.

As noted above, Prop 65 requires a warning on all products that contain chemicals known to cause cancer or reproductive harm. There are more than 900 such chemicals listed, and marijuana smoke has been included on the list since 2009.

For a warning to be acceptable under Prop 65, it must (1) clearly make known that the chemical involved is known to cause cancer and/or birth defects and/or other reproductive harm and (2) be given in such a way that it will effectively reach the person before he or she is exposed. The warnings must be “clear and reasonable,” meaning that the warning may not be diluted by other language. Various means of communicating the warning are allowed, including product-specific warnings on a posted sign or shelf, warnings on the product label or electronic warnings for internet purchases.

Important Exemptions

There are several important exemptions to Prop 65 that make a warning unnecessary. Businesses with nine or fewer employees are exempt from the statute. There also is an exemption involving chemicals that occur naturally in food. Lead, for example, will be considered naturally occurring only if it “is a natural constituent of a food” and is not added as a result of human activity such as pollution or poor manufacturing processes. The burden is on the company to prove the exemption, however, which is typically time-consuming and expensive.

Another important exemption is provided by “safe harbor” exposure levels for many chemicals on the Prop 65 list, below which no warning is required. The listed chemicals include additives or ingredients in pesticides, food, drugs and common household products. Most food contains at least some level of one or more of these substances. Prop 65 safe-harbor levels, however, are in many cases around 1,000 times lower than levels set by the Food and Drug Administration (FDA), Environmental Protection Agency (EPA) and World Health Organization (WHO). The exposure levels established by Prop 65 are often lower than what occurs naturally in fruits, vegetables, grains and even drinking water.

For example, the Prop 65 limit for lead is 0.5 mcg / day, which is below the amount of lead naturally found in many fruits, vegetables and herbs grown in non-contaminated soil. By comparison, the FDA allows 75 mcg / day and the European Union allows 250 mcg / day for lead. The European Food Safety Authority estimates the average adult consumes around 50 micrograms per day, which is 100 times the Prop 65 limit. It is nearly impossible to manufacture herbal products, including cannabis, without trace amounts of lead. Therefore, despite the “naturally occurring” exemption, discussed above, it can be dangerous to simply assume that an herbal product, including cannabis, complies with safe-harbor levels.

Only about 300 of the more than 900 Prop 65 chemicals have specific safe-harbor levels. For those chemicals without a safe-harbor limit, the burden will be on the cannabis business to establish that the subject chemical is within a safe range. This typically requires expensive testing, the results of which may be open to multiple interpretations as to whether a warning is required.

Determining the Exposure Level

Determination of the “exposure level” also is an important consideration. Prop 65 focuses on the level of a chemical to which the consumer is actually exposed. Although a product may have a very low amount of a chemical on the Prop 65 schedule that is below the safe-harbor level, liability under the statute may nevertheless be triggered based on the recommended serving size. It is advisable for companies to work with a laboratory that specializes in Prop 65 testing to determine the cumulative exposure level in order to verify the recommended serving size.

Enforcement of Prop 65

Prop 65 is enforced through litigation brought by the government or by private attorneys that “act in the public interest.” It is the threat of these private lawsuits that causes such consternation among those targeted with Prop 65 liability. After a 60-day notice period, the attorney may file a civil suit against the offending company. Typically, the plaintiff will demand that the defendant provide warnings compliant with Prop 65, pay a penalty, and either recall products already sold or attempt to provide health hazard warnings to those who purchased the products.

Though purportedly brought in the public interest, it is the collection of penalties and attorneys’ fees that in reality drives this litigation. Prop 65 allows individuals who bring suit to recover 25 percent of the penalties awarded, which by statute is calculated at $2,500 per violation per day. Amendments made to Prop 65 in 2016 allow for certain voluntary actions by the defendant – reformulation of the product, for example – in lieu of penalties. The threat of paying the plaintiff’s attorney’s fees makes litigating Prop 65 cases potentially very expensive. The attorney is incentivized to drag out the litigation, and the longer the case goes on, the more difficult it becomes to resolve because of the mounting fees.

This framework has created a cottage industry of Prop 65 “bounty hunter” lawyers who affiliate with “public interest” organizations that bring these cases for profit. According to the California Attorney General, 760 settlements were reported in 2016 with total settlement payments of more than $30 million. Attorneys’ fees accounted for 72 percent of that amount. The 2016 amendments to the statute have attempted to address these abuses to some extent by requiring a showing that the public benefits derived from the settlement are “significant” and by requiring contemporaneous record keeping for fees and costs sought to be recovered. Prop 65 litigation nevertheless continues to burden many industries in California, now including the cannabis industry. For Prop 65 liability, prevention is certainly less costly than a cure.

 

This post was written by Ian A. Stewart of Wilson Elser © 2017

For more legal analysis go to The National Law Review

Is Bullying Harassment?

California is oft thought of as a trailblazer in the arena of sexual harassment law. Because California’s Fair Employment and Housing Act mirrors Title VII, practitioners and employers in other states often look to California cases and laws regarding sexual harassment for guidance.

One area that has created a stir nationwide is California’s latest addition to its statute regarding mandatory sexual harassment training for supervisors. The state now mandates training on the subject of “abusive conduct,” otherwise known as bullying, in addition to training on sexual harassment avoidance. While “abusive conduct” is not illegal in and of itself, this addition to the law’s training requirements has created speculation as to whether legislation may be coming down the pike deeming bullying illegal.

Add to this discussion a new California appellate court decision, Levi v. The Regents of the University of California. In that case, the plaintiff was a neuro-ophthalmologist who claimed that the department chair sexually harassed  her by standing above her and banging his fists on his desk while threatening to fire her and by yelling at her on various occasions.  She also presented evidence of the department chair engaging in similar hostile and intimidating conduct against various co-workers.  The court, however,  refused to accept the plaintiff’s invitation to characterize “bullying” as harassment, and held that because there was no evidence that this conduct was because of the plaintiff’s gender, there was no harassment under the law.

Of course, bullying in the workplace is something that employers should seek to eliminate and prevent for a variety of reasons, such as fostering an inclusive work environment, keeping morale levels high, and ensuring that everyone works to their potential. However, the Levi case makes it clear that the kind of conduct we think of as bullying is not currently illegal harassment in most jurisdictions. Nevertheless, California’s recent sexual harassment regulations make it clear that companies must provide training regarding abusive conduct and avoiding bullying behavior.  The question remains – what does the future hold, and will the California legislature decide to codify its anti-bullying stance?

This post was written by Krista M. Cabrera of Foley & Lardner LLP © 2017
For more Labor & Employment legal analysis go to The National Law Review

Recording Conversations with Your Cellphone: with Great Power Comes Potential Legal Liability

In the cellphone age, nearly everyone walks around with a multi-tasking recording device in their pocket or purse, and it comes in handy for many of our modern problems: Your dog suddenly started doing something adorable? Open your video app and start rolling. Need to share that epic burger you just ordered with your foodie friends? There’s an app for that. Want to remember the great plot twist you just thought of for that novel you’ve been working on? Record a voice memo.

Sometimes, though, the need arises to record more serious matters. Many people involved in lawsuits choose to record conversations with their phones, all in the name of preserving evidence that might be relevant in court. People involved in contentious divorce or child custody cases, for example, might try to record a hostile confrontation that occurred during a pickup for visitation. Conversely, others might be worried that an ex-spouse has secretly recorded a conversation and plans to use it against them out of context.

But while everyone has the power to record just about anything with few swipes on their phone, do they have the legal right to do so? If not, what are the possible consequences? Can you even use recorded conversations in court? Consider these important questions before your press record.

Criminal Liability: Can you go to jail just for recording someone’s conversation?

The short answer: Yes. Under Michigan’s Eavesdropping law,[1] it is a felony punishable by up to two years and $2,000 to willfully use any device to eavesdrop on (meaning to overhear, record, amplify, or transmit) a conversation without the consent of all participants in that conversation.[2]It is also a felony for a person to “use or divulge” any information that they know was obtained through illegal eavesdropping.[3]

But there is one important distinction that Michigan courts have recognized: if you are a participant in the conversation, then you do not need permission of other participants to record the conversation (at least not when it comes to the eavesdropping law; there may be other laws that apply, as discussed below).[4] This makes sense given the purposes of the law. The theory is that if you are a participant in the conversation, then other participants at least have a chance to judge your character and determine if you are the kind of person who might relay the conversation to others (either verbally or by making a recording).

The bottom line is that if you use a device, like your cellphone, to record, overhear, amplify, or transmit a conversation that you are not a part of without the permission of all participants, you could face criminal consequences.

Civil Liability: If someone records your private conversation, can you file a lawsuit against them?

The short answer: Yes. The eavesdropping statute allows eavesdropping victims to bring a civil lawsuit against the perpetrator.[5] But the same distinction applies; you cannot sue someone for recording a conversation that they participated in.

Before filing a civil eavesdropping claim, though, consider what if anything there is to gain. The eavesdropping statute permits a judge to issue an injunction prohibiting the perpetrator from further eavesdropping. This may be a valuable remedy if there is a risk that the eavesdropper would otherwise continue eavesdropping on your conversations. The statue also allows a plaintiff to recover actual damages and punitive damages from the wrongdoer. In many cases, actual damages will likely be minimal, and punitive damages are subject to the whims of the judge or jury deciding the case. A result, the cost of litigation may exceed any monetary recovery unless actual damages are significant or the eavesdropper’s conduct was egregious enough to elicit a large punitive award from a jury.

Evidence and Admissibility: Can I use a recorded conversation in court?

Many people are familiar with the exclusionary rule that arises from the Fourth Amendment of the United States Constitution, which provides that if police officers obtain evidence as a result of an illegal search or seizure, then the prosecution is prohibited from using that evidence to support their case. This raises the question:

If a regular civilian obtains evidence by recording a conversation in violation of the eavesdropping statute, is that evidence automatically excluded from court proceedings?

The short answer: No. The exclusionary rule is specifically designed to curb the potentially oppressive power of the government in order to guarantee the protections of the Fourth Amendment, at the expense of excluding potentially valuable evidence from court proceedings. Since the Fourth Amendment only restricts government conduct, the exclusionary rule only applies to evidence obtained as a result of unconstitutional government action. As a result, even if a private citizen breaks the law and records your conversation, that recording is not automatically excluded from court.[6]

So does this mean you can use any recorded conversation in court whenever you want?

The short answer: No. Anything presented in court still needs to comply with the Rules of Evidence, and in many cases recorded conversations will not make the cut. A big reason is the hearsay rule, which says that out of court statements cannot be used to prove the truth of the matter asserted.[7] In other words, you can’t use a recording of your neighbor saying “I use my neighbor’s Wi-Fi” as evidence to prove that he was, in fact, using your Wi-Fi.

But there are many exceptions to the hearsay rule which might allow a recorded conversation into court. Salient among these exceptions is the rule that admissions of a party-opponent are not hearsay.[8] Consequently, if a man records his ex-wife’s conversation with her current husband, the hearsay rule will not prevent the man from using the recording of his ex-wife against her in a child custody case; the ex-wife is a “party-opponent” and her out-of-court statements are not considered hearsay.

Continuing this same example, note that the man’s actions would violate the eavesdropping statute (assuming he didn’t have permission to make the recording) because he was not a participant in the hypothetical conversation. But this violation would not keep the recording out of court. Nevertheless, if a prosecutor wanted to press charges, the man could be subject to criminal liability. And if the ex-wife was so inclined, she could file a civil lawsuit against the man and ask for an injunction and monetary damages.

Other Law: Is the eavesdropping statute the only law you need to worry about before recording all of your conversations?

The short answer: No, don’t hit record just yet. Even if you comply with the eavesdropping statute, there are still other potential pitfalls to be aware of. For instance, wiretapping laws govern the recording and interception of telephone calls and electronic communications, and carry criminal penalties. For inter-state phone calls, the laws of other states will come into play as well. And depending on the means you use to obtain a recording and what you do with the recording once you have it, you risk incurring civil liability for a variety of privacy torts, such as intrusion upon seclusion or public disclosure of private facts.

The safest route is to always get permission from everyone involved before recording a conversation or sharing a recorded conversation with anyone. If that’s not an option, consult with a lawyer who has had an opportunity to consider all of the facts involved in your case.

________________________________

[1] MCL 750.539 et seq.
[2] MCL 750.539a; MCL 570.539c.
[3] MCL 750.539e.
[4] See Sullivan v. Gray, 117 Mich. App. 476, 324 N.W.2d 58, 59 – 61 (1982).
[5] MCL 750.539h.
[6] See, e.g., Swan v. Bob Maxey Lincoln Mercury, No. 216564, 2001 WL 682371, at *2 n3 (Mich. Ct. App. Apr. 24, 2001)
[7] MRE 802.
[8] MRE 801(d)(2).

This post was written by Jeffrey D. Koelzer of  Varnum LLP © 2017
For more legal analysis go to The National Law Review