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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 88673
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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Hello Sir, If you recall, I previously asked you a questio

Customer Question

Hello Sir,

If you recall, I previously asked you a question about a combative & insubordinate employee who I wanted to fire correctly.

After speaking to her today, we came to a mutual agreement and resolved any negative feelings she had, however, due to my earlier suspicions of something going on in the office when I am not there I was audio tape recording the office conversations.

I reviewed those conversations tonight and this employee has been trying to set another employee against me by trying to convince her or "manipulate" her mind into negative ideas and opinions about me. She also said she wants to tell me to go f*ck myself.

Remember, all this she said before we resolved her negative feelings today.

The question is: Can I still fire her on the above issue after I already agreed to continue working with her? If not, how can I let her go legally without further complications?

It's amazing what your employees will say about you when you are not there, no matter how kind and generous you are to them.

Many Thanks!
Submitted: 4 years ago.
Category: Business Law
Expert:  Law Educator, Esq. replied 4 years ago.
If you have resolved the issues with this employee, then the implication of that is you would be starting with a clean slate from the date of the resolution of the issues forward. Thus, if she is an employee without a contract, she is at will and you can always fire her for no good cause, but if you are going to try to use this as cause for termination then chances are that 1) the recording is going to be held as unlawful unless you posted notices in the office you were recording all conversations in the office and 2) because the issue was resolved and this happened before the resolution it is likely that this will not be considered good cause for termination such that her unemployment benefits would be denied.

You can decide to terminate her for no good cause, as an at will employee, and perhaps even negotiate some severance with her where she waives any rights to sue you on any grounds (whether or not she has any grounds). Or you could terminate her for no cause or claim that it is lack of work. But terminating her on grounds here would not be appropriate.

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Customer: replied 4 years ago.
Thank you for the response.

To clarify, the recording took place in New York. Is there a law in NY that says I cannot secretly tape activities of my own office?

To follow up on the unemployment issue, would a commission based employee be able to collect unemployment from me for firing her from her "at will" job?

I recall from the "resolution" talk we had, that she said she doesn't want me to pay her anymore that she will just come in every other day to take care of her existing clients and doesn't want any money. Can this be construed as her quitting? Or can it be used to my advantage that she pretty much declined pay and therefore can no longer be considered employed by me?


Many Thanks!

Expert:  Law Educator, Esq. replied 4 years ago.
Yes it comes under the federal and state illegal wiretap laws. NY is a one party consent state, meaning that to record you need the consent of one of the parties to the conversation. The surrepticious audio recording of an office without the consent of at least one of the parties to the conversation would be illegal.

Yes, even if she is commission based, if she is an employee and not an independent contractor she would be entitled to unemployment benefits. If she has stated she would come in and does not want money, you had better have that in writing because I have seen those things blow up and such an oral agreement will not hold up in court. You could indeed argue that her volunteering to come in and finish up business was her voluntary resignation and you should not allow her to come in and simply tell her in writing you accept her voluntary resignation and there is no need for her to finish up business. But if you let her come in and work, you have to pay her because under the Fair Labor Standards Act a person cannot waive their right to pay for work.
Customer: replied 4 years ago.
She stated she doesn't want money to continue work and I have that on audio record as I was talking to her.

I read that in NY as long as you are a party to the conversation, you do not need permission from the other person to record. Is this true? and in this case, then I would have her admission to not wanting money for work on audio record. Would I still need it in writing at this point?

Thank you for answering my follow up questions.
Expert:  Law Educator, Esq. replied 4 years ago.
I said above that NY is a one party recording state, so you can use the recording of you speaking to her, but the other recording you referred to about her office conversations cannot be used.

You could use the recording of your conversation with her. You need to send her written notice summarizing your conversation and state that by stating she did not want pay and would come in to take care of existing clients is a voluntary resignation of employment and as such you accept her resignation and her services are no longer required. Again, under the FLSA she cannot voluntarily work for no pay or waive her right to pay for work. I would not advise keeping someone that is causing this much trouble around the office.
Customer: replied 4 years ago.
Thank you for understanding me and the situation I am in. I have treated this person kindly and with respect, but was simply shocked to her how evil and deceptive she was behind my back.

As a final follow up,

If I provide her the written notice, would it still be effective despite the fact I agreed to her coming in voluntarily after our last conversation? In other words, can she go back and say, "yea I resigned in a way, but he agreed for me to come back voluntarily"? Can't this nullify the notice?

I paid her on a 1099 basis.

Thank you!
Expert:  Law Educator, Esq. replied 4 years ago.
She is still at will, but if she was paid on a 1099, then you are claiming she is an independent contractor and you can terminate her services as you need to without any written contract. All you need to tell her is that her voluntary return for no pay is not acceptable to you and you have decided to terminate her services because they are no longer needed. She cannot make you allow her to come back to work for free.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 88673
Experience: All corporate law, including non-profits and charitable fraternal organizations.
Law Educator, Esq. and 10 other Business Law Specialists are ready to help you
Customer: replied 4 years ago.
Thank you Sir, as always great info and caring approach.
Expert:  Law Educator, Esq. replied 4 years ago.
Thank you.

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