Employee Information
Caution Using "Self-Help" Techniques

Sometimes complainants use "self-help" techniques that they think will help their discrimination cases, but which actually hurt their cases later. For example, courts have held that complainants who have falsified employment records, or taken restricted employment records without authorization, may not be entitled to full damages or reinstatement. There is a concept in discrimination law that "after acquired evidence" of employee wrongdoing can limit recovery or reinstatement even if the employee was discriminated against. Employer attorneys usually look for "after acquired evidence" during their discovery on employment discrimination complaints. Other complainants have tape recorded conversations not knowing that the recordings may be inadmissible as evidence if they were made in violation of law. For example, in California it is unlawful to record a confidential conversation without the permission of all participants (Cal. Penal Code 632). Oregon law prohibits recording an in-person conversation, unless all participants are informed (ORS 165.540(1)(c)), and prohibits recording a telephone or radio communication unless one participant gives consent (ORS 165.540(1)(a), and 165.543(1)). There may be limited circumstances when tape recorded conversations may be admissible in California and Oregon courts, for example if the recorded call came from a state where it was legal to record the conversation. It is permissible in some other states to record conversations if only one participant agrees. Complainants should be cautious about using questionable "self-help" techniques to obtain evidence. Complainants should consider other legal ways to preserve evidence, and obtain legal advice from an attorney if they feel that the evidence is important.

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