HR Strange But True!
February 24, 2010

An employee in Iowa recently found out what happens if you forget to hang up the phone after you call HR's voice mail, your next conversation is recorded on said voice mail, and that conversation sounds a lot like a drug deal to your employer. You are fired and the employer uses a recording of that voice mail to challenge your claim for unemployment benefits.

On November 2, 2009, an HR director for a NAPA Auto Parts store listened to a voice mail message that was from an employee who was on leave for a work-related injury. The first part of message was about the employee's work status. However, NAPA says the message also included a second part: one that sounded to NAPA like a prescription drug deal between the employee and a man named Donny. NAPA contends that the employee forgot to hang up the phone, so his next conversation in the room was recorded in the voice mail message.

The HR director sent the message to two managers and the corporate HR director. Then, the company's legal counsel got involved. The company eventually decided to terminate the employee for violating its policy that prohibits selling drugs. During his termination meeting, the message was played for the employee. The employee denied that the conversation after the message about his medical status was him.

The employee filed for unemployment benefits but was denied. He appealed.

The question before the administrative law judge was whether the employee was terminated for work-related misconduct, which would disqualify him from receiving jobless benefits.

The employer's policy prohibits employees from selling drugs.

“If [the employee] was involved in selling prescription drugs, he was in violation of the employer's work rules--even though the sale took place outside of work,” the judge said. “The Iowa Supreme Court has ruled that off-duty misconduct constitutes work-connected misconduct under the unemployment insurance law if the conduct violates known rules of the employer.”

So, was the employee selling prescription drugs? The employee denies that he sold drugs, citing the fact that he never faced criminal charges even after police investigated. The judge noted that while the burden of proof for a criminal conviction is beyond a reasonable doubt, the burden in an unemployment insurance proceeding is a preponderance of the evidence.

“[His] denial of what is obvious---that he had a conversation with Donny right after he left the message for the [HR director] that was accidentally recorded as part of the message because he did not hang up the phone---is not credible at all,” the judge ruled. “The voice sounds the same, and he begins the conversation by telling Donny he had to call in to his job and if HR called back to be quiet while he talked to her. I am absolutely convinced what was recorded was: (1) [the employee] talking to Donny about what Donny owned him for pills he had given Donny, (2) discussion about what he would charge Donny for additional pills, (3) Donny expressing interest in getting OxyContin from him if he could get some, and (4) [the employee] telling Donny he might be getting OxyContin as a replacement for Percocet. The preponderance of the evidence supports these findings. Under the circumstances, there is no question that the pills discussed were pills that required a prescription to possess them, which [the employee] was prohibited from selling or transferring.”

The judge upheld the denial of unemployment benefits.

Sources: Des Moines Register and Iowa Unemployment Insurance Appeals Board

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