Fired by voicemail
March 23, 2007 6:23 PM   Subscribe

I got fired via voicemail. Am I allowed to publish this voicemail to the web?

Some background:

I started working as a waiter at a restaurant about 9 months ago. When I was hired, a friend of mine mentioned that somebody that I was acquainted with used to be a manager there. I was acquainted with this person because he was a regular at an establishment that I had previously worked at. Four months into working there, my boss fired the two bartenders because they started a side business that he felt conflicted with his own. I was promoted to head bartender.

My boss is very vindictive, occassionally making comments to me to the affect, "When you see the old bartender thank him for your job," and other comments. I remained friends with the old bartender and consider him to be a good friend of mine, so I was very put off by the comments. I never mentioned the former bartender because whenever the subject came up it put my boss in a foul mood and my work environment suffered because of it.

Wednesday of last week as him and I were closing the restaurant down for the night we were having a very informal chat. My boss was going on vacation to Argentina (where he's from) and was going over the things that I would have to do to pick up the slack during his absence (liquor/wine ordering, etc.) followed by us both talking about our personal lives. I made a comment that I heard that bad things have happened before he has left in the past. He looked at me puzzled and I explained to him that I heard he fired the former manager right before he left last time he went to Argentina. He asked me how I knew him, I told him he was a regular at my last job. He told me I was lying to him and f#*&ing with him. He told me I only know him because I met him through the former bartender (wholly untrue, never saw the two together in my life). I told him I wasn't, why would I do that? Calmed him down as best I could, but I had to go. Went out after work, had my cell phone charging at home so it wasn't on my person. When I came home I had a voicemail from the owner.

It turns out that the former manager is the chef for the former bartender's side business. I didn't know this, if I did I would never have mentioned his name to my boss. I'm friends with the old bartender, but I am not privy to much information about his business, nor do I inquire.

I have to file a labor board claim against him for:

1. Failure to pay overtime.
2. Working off the clock.
3. Wrongfully scheduling breaks (Come into work, forced to take a lunch break 1/2 hour later, then working for 8 hours straight.)
4. Not giving me my final check.
5. When finally getting my final check it was shorted ~12 hours.
6. Possibly wrongful termination.

I've tried to talk to my former employer but all attempts have failed, the last communication was the voicemail, except for the next day when I came in to get my final check he had an "important table, and I should understand". I waited over an hour and finally gave up on getting paid or talking to him.

I want to publish this voicemail on the web, the friends that I've played it for have all been astounded. He chuckles and refers to me being fired as "good news". I've saved it as an mp3 and edited a person's last name and the name of the establishment out of it (I don't want to give him business, any publicity is good publicity as they say). Can I legally do this? Even if I can legally do this, could this hamper my case with the labor board (I do not plan to sue him in a court, just use the administrative process). I'm in California if that makes a difference.
posted by Mijo Bijo to Work & Money (27 answers total) 5 users marked this as a favorite
Just wait until they do your claim.
posted by IronLizard at 6:32 PM on March 23, 2007

My first guess would be that you own the file and are free legally to do what you want with it, but I am not a lawyer.
(in lawyerese, that makes me a "nonlawyer". really.)
posted by longsleeves at 6:38 PM on March 23, 2007

I don't know if it's legal or not. But I hope you do publish it online, but do so using a youtube upload, play this guys message using his name and business name - not edited out - while showing pictures of the restaurant, asking people if they want to eat there knowing what a trashy guy is running the place. If you do it well it could become a viral vid success, and he will rue the day he made that call.

I don't think that any publicity is good publicity - I'd never eat there, though I would go there and tell the guy that I am telling everyone I know to never, ever eat there.

Maybe don't do it out of revenge but just so we know where not to eat, and why.
posted by dancestoblue at 6:42 PM on March 23, 2007

I have no idea whether you ever should, but doing so before settling any issues and obligations with your former employer sounds like a really bad idea.
posted by ardgedee at 6:43 PM on March 23, 2007

Settle your accounts first and get a new job. Then, if you really want to, go ahead. Keep in mind future employers will possibly find this recording and think ill of you, not your former boss.

As far as if you have the right: I can't see how you wouldn't. He knew he was being recorded (ergo, he consented) and he gave control to you (it was your personal voice mail). As far as I'm concerned you are sole owner of that content.

Oh yeah. I'm not a lawyer. That was not legal advice.
posted by chairface at 7:10 PM on March 23, 2007

IANAL, but I've heard that voicemails are okay to publish, because the person who left the message is inherently giving his permission to be recorded (it's an answering machine or voice mail, after all). It might stand to reason that if it's your voice mail, you own what's on it.
posted by dhammond at 7:11 PM on March 23, 2007

My first guess would be that you own the file and are free legally to do what you want with it,

IANAL either, but I would guess the opposite. Someone who sends you an email or letter does not grant you the right to publish their written communication. I know someone who was threatened with legal action when she tried to publish "wacky" notes from her landlord.

I don't see why voicemail would be any different.

But I'm not saying you shouldn't do it. Publicly shaming him might work, and I doubt he'll want the further bad publicity suing you would entail.
posted by drjimmy11 at 7:40 PM on March 23, 2007

(but yeah, it might not look so good in court. so maybe hold off til the legal options are exhausted)
posted by drjimmy11 at 7:46 PM on March 23, 2007

IANAL either,
Nor I.
but I would guess the opposite. Someone who sends you an email or letter does not grant you the right to publish their written communication.
Actually, I think they do. At least, that's what I've always read: there's a whole theory of implicit copyright license, including the right to publish letters you've received. Again, IANAL.
I know someone who was threatened with legal action when she tried to publish "wacky" notes from her landlord.
This doesn't mean that their landlord necessarily had a legal leg to stand on, though. Plenty of people "threaten legal action" with nothing in particular to back them up.

Anyway, I agree with what some other people have said --- wait until you've settled any claim and gotten another job, then publish the voicemail.
posted by hattifattener at 7:56 PM on March 23, 2007

If it's your phone, you own the recording, as it's an expression of something that happened on your property, the same as if someone came into your house and you took a picture of them sitting on your sofa.

There are copyright implications. If someone sang a song into your phone, for example, they would retain copyright to the original song. But again, you would own the recording and could do with it what you wish.

Someone who sends you an email or letter does not grant you the right to publish their written communication.

Provided there are no other complications (see below), the letter-writer retains ownership of the written content of the letter. The receiver retains ownership of the physical copy of the letter and can do with it what they wish (burn it, keep it), to the point where they would infringe upon the copyright (e.g. if I send you my screenplay, you wouldn't own it ... but you would own the paper it's printed on and could sell the copy you own, but that would not transfer copyright of the contents).

I know someone who was threatened with legal action when she tried to publish "wacky" notes from her landlord.

This would hold water if the communication was considered privileged in some manner, meaning the letter-writer was provided some kind of reasonable assurance that the contents, or even the physical document itself, would be kept confidential.

There is another argument to be made here, and that is your possible malicious intent regarding the usage of this recording. If you know that publishing it would cause harm, or if the contents were untrue, or framed in a way as to make them appear to be untrue, there is an argument for libel/slander.

That being said, this is not legal advice and I am not your lawyer.
posted by frogan at 8:00 PM on March 23, 2007

OK, I know you're just asking if it's legal, but I have to say I think it sounds like a terrible idea, if only from a karmic standpoint. Vindictive crap like this smears mud on you as well as them.

Plus, it escalates the conflict to a level that may cause this guy (who already sounds like a nut) to act even more irrationally -- which may well affect your legal case.

Why stir the shit? File your claim if you feel you must, but personally I'd say get over it and get on with your life.
posted by ottereroticist at 8:03 PM on March 23, 2007

If this guy didn't sue, then I'd guess that you're fine.
posted by cribcage at 8:09 PM on March 23, 2007

Straight Dope on the letter issue.
posted by klangklangston at 8:26 PM on March 23, 2007

See a lawyer about the legalities, if it's a concern. Don't trust internet strangers (or internet friends, for that matter).

If you're not concerned enough to do that, then listen to those who tell you to wait until the legal stuff is done and you're gainfully employed before you post this to the web.

Beyond that, I don't know the legalities, but ethically speaking, he knew his voice was being recorded and that said recording would be in your possession. All bets are off.
posted by middleclasstool at 10:01 PM on March 23, 2007

I agree with ottereroticist. You sound really upset about this—and rightly so—but now doesn't seem like the time to publish it. If you aren't trying to smear his name (which I assume is the case, since you bleeped out the identifying details), then you're doing it to make yourself feel better. Again, understandable. But it probably won't make you feel better. And at worst, it will adversely affect your claim. Try to get yourself through the legal stuff in one piece and then see if you still want to publish it. And best of luck to you, this sounds like a nightmare.
posted by juliplease at 10:11 PM on March 23, 2007

Apart from being a strangely dumb idea (this guy is a vindictive arsehole? And you want to piss him off?!), you might like to consider that the voicemail system isn't yours - it belongs to your carrier.

I don't know what this means in your jurisdiction. What I do know is that it's come up at least once in an Australian court, and it was decided that the carrier - not their customer - owned the voicemail message. I'll try and dig up the details of the case.
posted by Pinback at 2:35 AM on March 24, 2007

I think it is an awesome idea. It seems to me that people like this own their own place because they like having and abusing ALL the power. Now you have something that he does not have power over. And it sounds very embarrassing. I don't know about the legal aspect but I sure as hell would have it online by now.
posted by hokie409 at 7:52 AM on March 24, 2007

it was decided that the carrier - not their customer - owned the voicemail message

Ah yes, that is true; I misread the question. It's a cell phone, so it's a service-based voicemail and not a physical recording on a device inside one's house.

The recording does indeed belong to the carrier, not the cell phone customer.
posted by frogan at 11:52 AM on March 24, 2007

Response by poster: I'm not after hurting his business, though I'd like to, I do care for my co-workers there and wouldn't want to hurt them. I'm more interested in being able to blog my experiences and using the recording of the voicemail in that blog. Also, my boss has changed his story about why I was fired to a bunch of regular customers, I'd like to be able to send them the recording to contradict what he has been saying about me.
posted by Mijo Bijo at 1:34 PM on March 24, 2007

Without identifying information (name, restaurant name) he has no valid libel case whatsoever. Have at it.
posted by sacre_bleu at 4:50 PM on March 24, 2007

I look forward to the post in the blue about this once you post it. (post it)
posted by Four Flavors at 10:29 AM on March 26, 2007

Uh, the folks talkin' 'bout libel are fulla shit. The reason there's no libel case is because he said it. The truth is an absolute defense.
posted by klangklangston at 10:44 AM on March 26, 2007

The reason there's no libel case is because he said it. The truth is an absolute defense.

Not true, but thanks for playing.

Libel or defamation per se -- you cannot impugn a person just for the hell of it, even if you're "truthful" about it.

In other words, you can't call a doctor a quack even if you had an armful of malpractice verdicts. You could say "this doctor has a shitload of malpractice verdicts against him," as that would be a truthful, non-libelous statement.

Moreover, the act of defamation can easily come not from the act of playing the recording itself, but from a framing device, such as "Click here to listen to the tape of my boss firing me. This guy is a total crook."
posted by frogan at 5:31 PM on March 26, 2007

Oh, bullshit. First off, your per se cite didn't at all back up the argument you're trying to make, second off, you can say that a doctor is a quack in print if that's the truth. You either have to be lying or "in reckless disregard of the truth." Feel free to read the wikipedia article you linked to, and bone up on the term "actual malice" and take another run at Sullivan.
You would be right if this was happening in a country not the United States of Canada, where TRUTH IS AN ABSOLUTE DEFENSE.
And yes, granted, saying that the boss is a crook as a framing device would (arguably) be actionable, but that would deviate from strict interpretation of truth and depend on the state's laws governing opinion statements.
Further, you would have to demonstrate actual damages out of not just the voicemail, but the framing device.
posted by klangklangston at 6:14 PM on March 26, 2007

Oh, and it's not libelous for the same reason that reporters can quote gaffes and print them, even if they're injurious to the person quoted. Again, truth trumps damage. Arguing for libel here is sniffing out liability where there isn't any. The copyright claim would be much stronger.
posted by klangklangston at 6:16 PM on March 26, 2007

I'm very sorry that you fail to understand this particular intricacy. You said truth is an absolute defense. It is not, with libel per se as an example. This test neither requires an actual defamatory statement, nor a proof of malice.

For example, if someone were to print that I were afflicted with some communicable disease ... and if this was not already publicly known in my community ... and even if I really were afflicted ... I would have standing, as it is commonly assumed that I have suffered damages, per se, from such a public statement (e.g. it encourages people to shun me).

So, truth is a defense. It is not an absolute defense.
posted by frogan at 9:07 PM on March 26, 2007

I am very sorry that you fail to understand that you are absolutely full of shit.
There are two issues here. The first is that we're both misusing "absolute defense." I'm not a lawyer; if you are, you should be ashamed.
Absolute defense refers to removing all liability, rather than a partial defense which mitigates liability.
But take ten fucking seconds to google it. You'll find things like this Yale Law Journal article, which gives a history of truth as libel defense here and in England, and notes that the protections are constitutional. If you were arguing that this voice mail would be libelous in London, circa 1847, you'd have a stronger case— except that HG Wells was the only one with voice mail.
The point of libel per se is that you don't have to prove certain forms of statement DAMAGING. However, the truth still trumps the claims of defamation.
See also: The EFF's paragraph on Libel Per Se. It still requires that the statement be FALSE.
Feel free to give me a citation for a case in which truth has not been a defense against per se libel. Not a hypothetical example, but an actual citation.
And stop relying on Wikipedia for your law research.
posted by klangklangston at 11:16 PM on March 26, 2007

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