Fired for Butt-Dial Call to Boss: Can Employee Win Lawsuit?

James Stephens put his cellphone in his pocket after hanging up with his boss one evening in January 2016. A few minutes later, he realized that he’d accidentally butt-dialed his boss, a Georgia official. The problem is that his boss overheard his conversation with his wife, where Stephens was critical about his boss’s job performance.

Stephens is suing. His lawyer’s legal theory is that the boss was eavesdropping on a private conversation. That is illegal. Therefore, a termination based on illegal behavior is itself unlawful.

I offer a different perspective.

First, Georgia’s constitution protects speech.  It states: “Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.” 

Stephens appears to have a constitutional claim: he was fired for speaking. 

To the counter-point that he abused this right, Stephens did not publicize his views, nor did he even intend for anyone else to hear this. 

Reinforcing the point, communications between married people enjoy a legal privilege.

There is a second basis for a claim: unjust dismissal. In many states—not all— courts have implied a right that an employee cannot be fired where the termination itself violates a public policy.

Now consider Virginia. It’s a conservative state like Georgia, and therefore recognizes employment-at-will. This means an employer—including public employers— can fire people anytime, for any reason, or no reason at all (see Donald Trump’s penchant for firing, the epitome of employment-at-will behavior).

In Virginia, the boss fired a female subordinate after she refused to have an affair with him. She sued, claiming unjust dismissal. The employer argued employment-at-will applies even to bad or stupid terminations (it does).

But here’s the twist: the woman’s lawyer pointed to Virginia law, which places special significance on the marital relationship between husband and wife (not same sex couples, but that’s a different story). She won the case on grounds that she was fired for refusing to violate the sanctity of her marriage.

In Georgia—where marriage enjoys that type of special legal status— it would seem that Stephens for fired for communicating private information meant only for his wife. Granted, it’s not the same case as adultery-or-else.

But if a husband and wife, or same-sex married couples, can be fired because their boss eavesdrops on their intimately private communications, how does the law protect the special nature of the marital relationship, where trust and privacy are paramount?

Thanks to my wife, Janet, for the tip on this story!