We all know butt dials can be embarrassing. But lawsuit worthy? Now that's news.
According to The Washington Post, James Huff, chairman on the Kenton County Kentucky Airport Board, and his vice chairman Larry Savage were deciding where to eat, and Huff called an assistant Carol Spaw to make reservations. Huff slid the phone into his pocket and continued to shoot the breeze with Savage. Unbeknownst to either of the men, Huff accidentally dialed Spaw again, and she quickly realized the call was a butt dial, the report notes.
But once she heard talk of unlawfully firing the airport's CEO – her boss – she took notes, recorded the entire 91-minute conversation, and reported it. The call spurred a lawsuit, and the US Court of Appeals had to decide whether a recorded butt dial is admissible.
The Washington Post states the court sided with Spaw because…
- Huff was aware that pocket-dial calls happen and had previously made such calls.
- Huff hadn't locked the device even though he knew the risks, so he didn't have a reasonable expectation of privacy.
The court's interpretation of what constitutes as a reasonable expectation of privacy is an important one in the age of hyper digital connectedness. Even if you inadvertently place a call with your derrière, the call can be recorded, and what you say can be lawsuit fodder.
Calling All Risks
Thanks to Huff's unfortunate experience, we now know that pocket-dial calls aren't protected conversations. That means an overhead call may be used to support allegations of:
- Discriminatory practices. Any talk of firing or failing to hire someone can come back to haunt you if that person belongs to protected class (i.e., a group of people who are afforded a little extra workplace protection from equal employment opportunity laws because of their gender, race, religion, etc.). If someone records the conversation, it could support an employment discrimination claim. Read more about protected classes in the post "Hiring an Employee? Know What Can Go Wrong."
- Advertising injuries. Slander (i.e., spoken defamation) is an advertising injury that can be hard to prove. That's because the statement must be false, must be made publicly, and must cause harm to the injured party's reputation. However, in the era of digital communication and readily available recording devices, it's easier than ever to document slanderous talk, which could help support an advertising injury claim. Learn more about slander in Chapter 2 of our eBook Tweet or Twibel: The Small-Business Owner's Guide to Advertising Injury.
Moral of the story: when you're having a conversation with a friend, it's natural to speak more openly and let your unfiltered opinions loose. In the context of your business, some of those opinions can be very harmful, especially if you accidentally say something offensive about an employee or a competitor.
If Huff's experience teaches us anything, it's that being aware is a good way to manage these risks. Overhead conversations in a crowded restaurant or on a misplaced phone call may be recorded and used to support a lawsuit.
Keep Your Calls Off Record
First and foremost, if you're worried about butt dials, for Pete's sake, lock your phones. If Huff had locked his phone, the entire debacle may have been avoided from the start.
Secondly, understand your limits. You can be liable for firing someone just because they are a woman or over the age of 40. You can also be liable for publicly slamming a competitor for "ripping people off" if that is a subjective statement. As a business owner, you have plenty of discretionary power, but knowing how you can be held accountable for your decisions or your statements can help you draw boundaries.
If you make a mistake, the following policies may help:
- Employment Practices Liability Insurance. This is the policy you'll need if a former, current, or potential employee accuses your business of discriminatory management practices.
- General Liability Insurance. So long as this policy has advertising injury coverage (and most do), it can help you pay for legal expenses if you're sued over committing slander.
Lastly, work with an IT consultant (who has adequate technology E&O Insurance!). They can help you understand the other exposures technology brings to a business.