DEAR CARRIE: Nine years ago I worked for a gentleman who asked me to create an after-hours message on his answering machine that would direct people to either his extension or mine. It has come to my attention that he is still using my recorded message. Should he have asked my permission to continue using my voice message after I left? Do I have any recourse?
DEAR LINGERING: My goodness. You'd think he would have updated his greeting by now.
Unlike a previous reader whose former boss was illegally using her resume to obtain contracts long after she left his company, you are in a different situation, in part because of an apparent lack of a commercial motive, according to Alan Sklover, a Manhattan author and attorney who represents employees.
Here's a general explanation of why the company has a right to the continued use of your recorded voice:
“Generally speaking, the employment relation is one in which employees perform services for their employers, and employers pay for those services; part of this employment relation is that employers can retain the value and products of those efforts after the employment relation ends,” Sklover said.
He offered an example: 'If, while you were employed, you designed and installed a new billing system for your former employer, he or she would be able to use that billing system forever, without additional payments to you, as it had been given and received as part of the employment relation. The same would go for anything you did, made or suggested while employed for your former employer."
Sklover said that when it comes to questions like yours, laws and judges’ decisions over the years have recognized four elements that must exist to justify a legal case over the continued use of a former employee’s name, photograph or recorded voice:
1. An agreement to discontinue the use of your voice has been violated.
2. The use is knowing and intentional.
3. It is material or essential to the business.
4. It is for commercial use, meaning that it somehow brings money to your former employer.
"All four must be provable in a court," Sklover said.
As for legal element No. 1, there appears to be no formal agreement about discontinuing the recording.
"You have not mentioned that there was any agreement between you and your employer that he would remove your voice from his recorded office greeting message if you left the job for any reason, " Sklover said.
Regarding legal element No 2, he said your ex-boss may be not even be aware the message is still on the phone.
"He probably does not use that message system himself," he said.
Point No 3 concerns whether your recorded message is key to the business or harmful to you. It doesn't appear to be so, Sklover said.
"This use is not material, but merely incidental," Sklover said. "That is, it is neither central to the business of your former employer, nor is this use of your voice on this recorded greeting likely to result in your being shamed, ridiculed or wrongly being taken advantage of as would, for example, a photograph of you eating a frog on a website."
Finally, regarding legal element No 4, "Your voice on this voicemail message does not seem likely to be considered for commercial purposes; that is, in itself, it does not bring any revenue to your former employer," Sklover said.
For the above reasons, a lawsuit on the matter would "likely be promptly dismissed in court," he said.
But that doesn't mean you should keep mum.
"If you strongly prefer to have your voice removed from your former employer’s voicemail, " he said, "nothing does the trick like 'the three Rs.' ”
They are a request that is respectful, reasonable and based on an "understandable" rationale, he said.
Go bit.ly/LItalk for general information on how to have a difficult conversation with a boss.