Pocket-dialed cell phone call leads to job loss and a lawsuit

Ahhh! The modern-day problems of a hi-tech society …

Georgia resident James Stephens – told to resign or get fired by his former boss, Mike Coan, after Coan overheard a conversation between Stephens and his wife – is suing Coan. The civil suit isn’t based on workplace discrimination or wrongful termination. The former employee was not a whistleblower, giving officials information about illegal misdoings in the workplace.

Oh, no. Nothing like that. At the heart of this legal action is a privacy question.

The lawsuit is based on the Stephens’ belief that Coan violated his privacy by listening to the conversation that included Stephens’ critical comments about Coan’s job performance.

Coan heard the conversation, held in Stephens’ private residence, because Stephens “pocket-dialed” Coan. Following the overheard conversation, Coan reportedly told Stephens he could either resign or be fired.

For anyone who is not familiar with the term, pocket-dialing is when your cell phone that’s in your pocket, purse or whatever accidentally calls someone because buttons are mistakenly touched.

It’s true that Georgia has a state law about eavesdropping. Stephens is claiming that Coan should’ve hung up his phone once he realized he was pocket dialed.

Look, I’m not lawyer. Nor do I play one on TV (or Hulu, or Netflix, or whatever you watch or stream – you see how complicated technology has made things?).

But it seems to me that once you bring someone else into your conversation, mistakenly or intentionally, you should lose that reasonable expectation of privacy.

I’m probably not too far off of the mark on this. The 6th U.S. Circuit Court of Appeals ruled, in 2015, that a person who “butt dials” doesn’t have a reasonable expectation of privacy because the butt-dialer made the call. But only Kentucky, Michigan, Ohio and Tennessee fall within the 6th Circuit.

For the record, I don’t know if Stephens had his phone in the back pocket of his pants or in a breast pocket of his shirt. I’m not sure if that matters. In a court of law, in might, given the application of law in cases where the fact patterns are as similar as possible. To me, it doesn’t matter. You just need to be extra careful with what you say in this day and age. Pocket dialing or butt dialing was not an issue 25 years ago.

But if the expectation is not a reasonable expectation that a reasonable person would hold – and if there isn’t a law specifically prohibiting Coan from remaining on the line once he realized he was accidentally called, does Coan have a duty to hang up the phone and remove himself from a conversation to which he was not intentionally and specifically invited?

Now, maybe Georgia’s state law calls for Coan to have hung up the phone once he realized he was dialed inadvertently. If so, how reasonable is that expectation? Who wouldn’t listen to a conversation which includes the mention of his or her name?

I mean, it’s not like Coan wire-tapped Stephens’ cell phone or his private residence, or placed a listening device in Stephens’ coat or something straight-up insidious like that.

While Coan reportedly admitted that he realized he was mistakenly called but stayed on the phone call, Coan’s attorney claims the state’s eavesdropping law doesn’t apply to Coan because Coan heard the comments while in his official capacity as a state employee. Coan is the director of the state agency which oversees worker’s comp claims of people with disabilities who injure themselves while working. Stephens was his subordinate.

I’m no courtroom judge. But I’m not buying that “official capacity” defense.

And what’s the deal with that ultimatum to Stephens. Resign or be fired? Really?

Coan claimed that he could no longer trust Stephens, and have an effective work relationship with Stephens, given the negative criticism he overheard. Sounds a lot like retaliation to me. But, as is the case most often, there’s probably more to this story. If there is a civil trial, it’ll all come out then. Otherwise, there’ll be some sort of settlement and we’ll never hear from these folks again.

But, then again … I guess a wrong number pocket-dial to any one of us, from either of these guys, isn’t out of the question.

Ahhh! The modern-day problems of a hi-tech society …

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