i have a friend who is a salesman. He has always used his personal phone for business. now, along comes his boss who demands he transfer his personal phone, including the phone number, to the company, possibly with the intent to let him go and retain all the business numbers he has collected over four years. there is a non-compete involved. Needless to say, all his personal calls would also be in the records. the employer has stated that if he refuses, he will be terminated. Is this legal????

Even so, he can be terminated at the employer's pleasure at any time.

He ought to be brushing up his resume about now.

(still not a lawyer)

seems like they've already decided.  If they were not planning to dump him, they'd not need his contacts.  The company already knows every customer he's ever sold their products to.  I suspect this is their clumsy way of enforcing the no compete clause.  If he's smart, he has records somewhere other than his phone.  

Agree, he's on a bannana peel.
H

Get a cell phone which he only uses for business and give the employer the number

with a bunch of customer names associated with the phone numbers of some gay escort services.  Let the boss figure that one out.

My suggestion would be to comply with his employers request/demand, but only after downloading/backing up all the important data.

Your friend is almost certainly in line to be let go, and his accounts are being readied to be handled by someone else in the organization. You mention he has a non compete agreement in place with his employer, having been on both sides of the equation, I can tell you that most non competes are written so broadly that they are almost impossible to enforce, especially in "right to work" states.

Let the company do their worst, IOW fire him/lay him off, in the meantime he should start shopping his services to all of his present company's competitors. That client list of his will be gold when negotiating a new employment contract. He also might want to check with an attorney to find out just how enforceable his non compete agreement really is. I would bet that it probably isn't worth the paper it is written on.

The question is if the demand for the personal phone constitures grounds for a wrongful termination.

legal _begal....care to offer an opinion?

If the Company has a policy about the use of personal cell phones, then they might have a claim. For instance, they can ban the use of personal cell phones during company time, and for other than incidental business purposes. If you violate the rule, it is at your risk.

At the other end of the spectrum, consider:

You work out of a home office, and mail is sent to your home address. It would be hard for the company to take possession of your house.

they are written on and would get tossed out by any judge in court. The employee has a right to make a living.

Unfortunately most employees are unaware of their rights and interpret these contracts as binding.

Most employers rarely challenge violations of non compete agreements in court because the risk to them is too great. An employer might be forced to rehire an employee they don't want at his last salary plus back pay and damages.

Foregoing that, an employee might be entitled to a hefty settlement by his former employer for denying him the right to work in his chosen field and to make a living.

Would you be willing to pay someone to sit on the couch and watch TV for a couple years because you don't want him to work for you or your competitors?

No in 99.99% of cases and I suspect this case falls in that category.

the question of who owns the phone. The employer can only ask for the phone if he supplied it to the employee and or pays the service contract. To ask for the employee's personal phone is a violation of privacy rights and the fact that the employee used it for business would not be a determining factor. nor would retention of the phone by the employee violate a non competition clause if one existed. At the most an employer could ask an employee not to use a personal phone for business or not to use it during business hours but as a personal phone is seen also as a security device and it is probable that the employee could not be bared from carrying the phone or using it in a time of emergency, such as we have seen with shootings in work places or schools where students carry phones.

Refusal to consign personal phone would not be grounds for termination of employee unless there were serious violation of work place rules such as an employee spending work time doing personal business or un-business like activities. In the case of an employer who wanted to fire the employee, he could demand personal phone and then fire employee and when employee takes him to court the employer would show how employee abused work place with the personal phone, however, employer would still not be able to demand phone but he could fire the employee.

My take is employer did not furnish a cell at company expense...  if so they simply get it back at the end of employment.  Instead, the employer was fine with the employee using his personal phone...  until now.  
I think the employer is about to terminate anyway...  however I know one guy who got a big payday (reportedly a couple of mill) for an unlawful termination.  I suspect that firing for refusing to surrender personal property might well fit the defination of unlawful termination.  
If employee/salesman is going to continue doing his job (employmement), how could he do so without his phone?    
H

Just to be clear. The employee used his personal phone for business from inception of employment with the employers knowledge and consent. In a meeting recently, the employer actually said that if the employee did not transfer the personal phone number to the employer, it would be a "deal breaker", implying the employee would be terminated. The employee is an "at will" employee.

the problem for my friend is that he thinks if he accused the employer of trying to force the transfer of the number, the employer will deny they ever did that and simply fire him. As an aside, non competes in the state in question DO enforce valid non-competes.

how can the employee create evidence of the employers unlawful demand to turn over his personal phone number even though the employer had no problem with it for four years? incidentlly, the employer never paid a diime of the employees phone cost.

I see this a lot in on-the-road salesmen.  I know several where the company really screwed the salesmen out of a lot of commisions owed (among other creditors).  Filed a bankrupsy which was their plan all along.  Happened to a friend in fact.  He managed to get a big shipment of inventory right at the end...  when the guy stiffed him, he kept it.  The company threatened to sue, he pointed out that the company owed him more than that & he would happily see them in court.  Last I heard he was still selling old stock on ebay.  

My Dad delt with a lot of traveling salesmen in his business...  they worked d@mn hard for their commisions...  and bent over backwards to help the customer, which created loyal clients.  In one case, we'd had the same salesman...  started stopping on his route before the building was completed...  stopped faithfully ever week & wrote the order.  Any problems, he went into the main office once a week & made sure they were made right.  10 or more years later Elmer retired, some kid got his route.  They rode together for a week transition.  We never saw the kid, he wanted us to call in orders.  Ship back returns.  Problems were not resolved, we were expected to pay the bills & credits were 60-90 days behind.   Dad shifted the orders to another supplier.  Elmer came by to see what had happened...  the company brought him back to see if it could be fixed but no, it wasn't.
H

Employee is going to get fired either way.

A simple letter from employee's lawyer to employer asking transfer request in writing might scare them off. It would also set him up for a potential legal challenge against former employer. Phone number belongs to employee and no way should he transfer the phone given employer never paid any bills and consented to practice at time of hire.

He should also save all checks, credit cards receipts, bank statements to prove he personally paid to use the phone.

Just because a non compete was signed and agreed to does not mean it is valid. That is for a judge to determine. My opinion is that it still gets tossed. It also might be a good time for a lawyer to take a look at that contract as well.

"assign" a phone without something in writing.  Mr Employer, give me the contract / agreement to look over (make copies of, take to my lawyer) and I'll think it over...  
It just smells like the decsion has already been made...  likely to be let go anyway.   I wonder why the employer is so foolish as to tip their hand like this.  
H

I know of a certain case where a business was sold & the former owner had a huge goodwill/customer base.  The non-compete clause was the seller could not run a similar business within 50 miles for 5 years.  I think it was valid.   The employees were not affected & most did find employment nearby.