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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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Is it a violation of privacy when a third party reads a text

Resolved Question:

Is it a violation of privacy when a third party reads a text message off someone else's phone w/o their consent? Can the violator ask questions based off the text message and expect a response from the participants of the text message or can the participants refuse to answer questions?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  philip.simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

I want to make sure I understand...one of your bosses took your phone, without your permission, and looked at the text messages?
Customer: replied 1 year ago.

No, The "partner" obtained my bosses phone. In short, right now they are overseas on business together. My boss and I were discussing a position for me in Alaska, via text. At the end of the text I stated I do not want to discuss Alaska w/ anybody but him until his partner is gone next month. What is happening is the partner is being bought out by other members of the board and my boss told me this in secret. Apparently no body is suppose to know. My boss texted me, that when they get back this weekend the partner is going to ask me how I know he is leaving and why I don't want to discuss Alaska w/ him. My boss wants me to lie about how I know about the partner leaving because their could be legal ramifications with their deal. I want to know, legally, do I have to say anything?

Customer: replied 1 year ago.
Relist: Other.
Lawyer is busy.
Expert:  socrateaser replied 1 year ago.
Hello,

Different contributor here. Please permit me to assist. You asked:

Is it a violation of privacy when a third party reads a text message off someone else's phone w/o their consent?

A: Unless the "someone else" is an attorney at law, mental health professional, physician, or priest, then there is no statutory violation of privacy with respect to you.

There is, however, a common law legal action known as "public disclosure of private facts." As the name implies, the disclosure of private facts which are made in a manner that would be outrageous to an ordinary person is actionable. The problem, here, however, is that your boss and his partner have a fiduciary duty to one another as it concerns business matters. So, your boss is actually required to disclose important facts about the business.

Consequently, in order for you to win a lawsuit for public disclosure, you would have to show that your boss' actions were outrageous to any person of ordinary sensibilities. If you put yourself in the position of a jury of 12 members of the community, I think you can probably guess that it would be unlikely that they would find your boss to have acted outrageously.

Can the violator ask questions based off the text message and expect a response from the participants of the text message or can the participants refuse to answer questions?


A: Again, your boss owes his partner a fidicuiary duty to disclose business-related matters. So, in this case, the "violator" is actually entitled to the disclosure -- and your boss would be obliged to disclose -- once again, unless he is a professional who has a duty of privilege and confidentiality which overrides any other legal duty (doctor, lawyer, etc.).

I realize that my analysis and conclusion here are unfavorable. However, you may be able to salvage things by using the disclosure to provide a bit of a guilt trip on your boss -- e.g., "I really wish you wouldn't have allowed your partner to view our conversation. I was talking to you in confidence." That's probably the best you can do in this circumstance.

Sometimes the best one can do is to know what the law is or is not. If you need further clarification, about the issue, or you believe I may have missed something important, feel free to let me know and I will be happy to reconsider my analysis.

Hope this helps.
:
Customer: replied 1 year ago.

Thank you. I have no intentions on pursuing a law suit on my behalf. I would like to know now, after understanding their fiduciary responsibilities, am I obligated to answer any questions, based off the text, from the partner or can I refuse to speak to him given the legal matters involved.

Expert:  socrateaser replied 1 year ago.
Cal. Labor Code 2922 provides that an employer or employee can terminate the employment relationship "at will:" at any time, for any reason or for no reason at all. There are, of course, numerous exceptions to this rule: unlawful discrimination (race, color, nationality, religion, sex, age disability), jury duty, witness subpoena, reports to law enforcement of employer illegal conduct, etc. But, the general rule is that the employer doesn't need a reason to fire an employee.

Because of this construct, you have the right to refuse to answer any question asked by your employer -- but, the employer can terminate your employment immediately, if it finds your refusal unacceptable -- except in circumstances where you have reported the matter to law enforcement. Examples:

1. Your employer docked your pay because you allegedly stole cash from the employer's petty cash drawer. That is flatly illegal, because your employer cannot garnish your pay without first proving the theft and obtaining a court order. So, you could file a complaint with the Division of Labor Standards Enforcement, and if the employer started to interrogate you about the issue further, you would have a wrongful termination action after you refused to discuss the matter further -- and the employer fired you as a result.

2. You complained about a safety violation to Cal-OSHA, and the employer suspends you from work. That's retaliatory and illegal.

3. The employer is engaged in a ponzi scheme and is stealing from its clients. This too is illegal and you could report to the police/sheriff.

For each of the above, the trigger is that you have to complain to some law enforcement agency about the employer's conduct. Cal. Labor Code 1102.5 protects you after "whistleblowing." The law does not protect you, unless you make the complaint to an outside authority. You can even be wrong about your suspicions, as long as your report is made in good faith (honest belief).

But, if you are trying to protect yourself from some unlawful act that you have done, and you refuse to answer the employer's questions, then you have no protection, and the employer can simply say, "Well I understand your reluctance to discuss the matter, but, under the circumstances, I'll have to let you go." And, if that were to happen, then you will have protected your right to remain silent, but you will have lost your job, and you won't be able to recover it or sue the employer for the termination.

Please let me know if you need further clarification about this. I realize it's a pretty complicated issue.

Hope this helps.
Customer: replied 1 year ago.

Legally, since the partner has only 25% ownership of the company does he 100% authority to release an employee w/o agreement from the other three partners? Is this only a company policy issue?

Expert:  socrateaser replied 1 year ago.
Legally, since the partner has only 25% ownership of the company does he 100% authority to release an employee w/o agreement from the other three partners?

A: The term, "partner" is frequently misunderstood, even by the partners themselves. A partner's authority depends on the exact nature of the legal entity for which he is a partner (general partnership, limited partnership, limited liability partnership, limited liability company). Many times, co-owners of a corporation call each other partners, when in fact they are not partners at all.

The point is that without knowing exactly what the legal form of the organization is, and without reviewing the partner's authority, I cannot definitively answer your question. However, in general terms, a partner with only 25% ownership would be able to hire and fire, unless there is some written agreement with the other partner(s) providing otherwise.

Is this only a company policy issue?

A: The Cal. Corporations Code regulates what partners can and cannot do. Generally, the code is fairly relaxed and permits partners to determine their respective authority -- and the Code only creates default rules in cases where there is no written agreement between partners.

Hope this helps.
Customer: replied 1 year ago.

It is a limited liability company w/ four owners. Does that change anything?

Expert:  socrateaser replied 1 year ago.
An LLC may or may not have an "operating agreement." If yes, then the agreement will generally specify who has management and control authority. If the operating agreement so states, then only a manager could fire you. if the operating agreement is silent, then any member/partner could fire you.

Hope this helps.
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Experience: Retired (mostly)
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socrateaser
California Employment Lawyer
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Retired (mostly)