Dan Martinez was employed as a sales representative by B.J. Rothman, Inc., a telemarketing company. Martinez's immediate supervisor was Greg Rose, and Rose's supervisor was Victoria Bush. Rothman, Inc., was under contract with Consolidated Telephone to solicit advertising for its telephone directories from present and prospective advertisers. All such solicitation was done by telephone, and Martinez was hired and trained to make these calls.
Rothman, Inc. has an established policy, of which all employees are informed, that monitoring solicitation calls is part of its regular training program. The monitored calls are reviewed with employees to improve sales techniques. This monitoring is accomplished through a standard extension telephone located in the supervisor's office, which shares lines with the telephones in the employees' offices. Employees are permitted to make personal calls on company telephones, and they are told that personal calls will not be monitored except to the extent necessary to determine whether a particular call is of a personal or business nature.
In May 2013, during his lunch break, Martinez received a call in his office from a friend. At or near the beginning of the call (there are conflicting indications), the friend asked Martinez about an employment interview Martinez had had with Banjoville Sales Company, a competitor of Rothman, Inc., the evening before. Martinez responded that the interview had gone well and expressed a strong interest in taking the Banjoville Sales job.
Unbeknownst to Martinez, Rose was monitoring the call from his office and heard the discussion of the interview. After hearing the conversation (how much is unclear), Rose told Bush about it. Later that afternoon, Martinez was called into Bush's office and was told that the company did not want him to leave. Martinez responded by asking whether he was being fired. Upon discovering that his supervisor's questions were prompted by Rose's interception of his call, Martinez became upset and tempers flared. The upshot was that Bush did fire Martinez the next day. However, Martinez complained to Bush's supervisor and was reinstated with apologies from Bush and Rose. Within a week, Martinez left Rothman, Inc., to work for Banjoville Sales. Two weeks later, he filed suit against Rothman, Inc., claiming that monitoring his personal phone call was an invasion of his privacy.73
a. Will Martinez prevail in his lawsuit? Why or why not?
b. Under what circumstances can a private sector employer monitor the phone conversations of its employees?