January 28, 2016
Dialing mistakes are no longer just material for late night comedy. Several recent employment cases show the consequences of “pocket dialing” on cell phones. The mistaken calls disclosed plans to fire executives, disrespect for management, conflicts of interest, and affairs with co-workers. The misdialing employees and supervisors emerged from the incidents with lost jobs and lost respect- and then lost lawsuits over use of information from the mistaken calls.
The case of Huff v. Spaw gives an international twist to pocket dialing and corporate intrigue. Two board members from the Cincinnati-Northern Kentucky Airport were at a business conference at a Bologna, Italy hotel. The board members called Spaw, the executive assistant to the airport’s CEO in Cincinnati, to make dinner reservations in Bologna (rather than use the hotel concierge or the conference planner). After the call, the two board members discussed the airport CEO’s future employment. During the discussion, one board member pocket dialed Spaw, the executive assistant. After trying to announce herself and getting no response, Spaw realized that the call dealt with employment action against her boss, and proceeded to make notes of the call and then to record the call electronically. Spaw said that she recorded the call because the board members were planning discriminatory action against the CEO.
After Spaw shared the call’s details with the airport board, the board member and his wife sued Spaw in federal court claiming that Spaw had violated federal anti-wiretap laws. The federal district court denied injunctive relief to the plaintiffs and granted Spaw’s motion for summary judgment. The court held that a person carrying a device that could transmit conversations had no reasonable expectation of privacy against inadvertent transmittals. The court noted that the board member could have locked or put away his phone while discussing the CEO’s status. The Sixth Circuit upheld the trial court dismissal of the board member’s case but allowed the board member’s wife to go forward with her privacy claim since her conversations were overheard from the board member’s hotel room. The Sixth Circuit told the trial court to examine whether Spaw’s interception of the wife was intentional.
Three other recent mistaken dialing cases involve less international intrigue, but all three led to situations where employees lost their jobs. In Bagby v. Covidien, plaintiff Bagby pocket dialed his supervisor in Ohio while at his parents’ house in California. During the inadvertent call, Bagby called his boss “weak” and “a puppet” and expressed his own view that he was “too good” to work with his colleagues. His supervisor’s voicemail recorded the conversation. Several months later, the plaintiff was given an informal performance development plan after failing to meet his sales quotas. Plaintiff ultimately resigned from the company after taking a stress-related leave brought on partly by his view that his boss was hostile after the pocket dialing incident. The plaintiff sued unsuccessfully for disability discrimination; the court granted summary judgment on his claim, holding that he was not disabled and that his resignation was not the equivalent of a discharge.
The employee’s pocket-dial in Bagby started on a downhill slide that led to his resignation. In two other cases, the employer fired the employee shortly after learning of the mistaken call. In Bancroft v. Katits, the plaintiff was an employee of the Central Bucks YMCA, involved in a romantic relationship with another YMCA employee. After leaving a routine voicemail message for a third employee, plaintiff resumed a discussion with her coworker about their romantic relationship- without realizing that she had not hung up with the third employee! The third employee played the voicemail for other YMCA employees, and the YMCA immediately terminated the two romantically involved employees. The employee who left the voicemail message sued the third employee and the YMCA, claiming violations of the Pennsylvania Wiretap Law, invasion of privacy, and intentional interference with contract. The trial court dismissed the action on preliminary objections. The Superior Court told the trial court to consider the intentional interference claim, but then upheld the trial court’s grant of judgment on intentional interference because playing the voicemail did not transmit untrue information.
In Ross v. IBM Canada Limited, the Alberta Court denied an IBM salesman’s claim for wrongful dismissal after the salesman pocket dialed his supervisor during work hours while discussing a side home improvement business with his own subcontractor. IBM’s employee guidelines prohibited outside work during IBM’s regular work day. The Alberta court found that the salesperson had committed such a serious work rule violation that IBM could dismiss the salesperson immediately with no warning and no severance pay.
The moral of these cases is that communications while pocket dialing may not be protected communications under either Federal or Pennsylvania (or even Alberta) law. Employers may indeed monitor these communications. More cases and controversy about pocket dialed calls are likely as the volume of cell phone communications grows, and as people continue to be careless about handling calls.
The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation