Employee email – neither private nor privileged

Another case has been decided that should put employees on notice – there is no special privacy protection for email sent using your employer’s devices.

On December 13, 2012, the U.S. Court of Appeals for the Fourth Circuit upheld the conviction of Phillip Hamilton, a former member of the Virginia House of Delegates. Hamilton had been sentenced last year to over 9 years in prison for using his political position for his personal enrichment.

The source of some of the evidence used to convict him was an office email account from which he communicated his criminal intentions to his wife.

Hamilton appealed the conviction and sentence on many grounds, including the assertion that the use of the messages violated his right to privacy as well as his marital communication privilege.

The court demurred, finding that Hamilton waived the privilege because he sent the messages in question using his work computer and his work e-mail account.  The court came to this decision even though the office where he worked instituted and communicated its computer use policy after most of the incriminating email had been sent.

Fourth Circuit Judge Diana Gribbon Motz wrote,  "…(T)he district court found that Hamilton did not take any steps to protect the emails in question, even after he was on notice of his employer's policy permitting inspection of emails stored on the system at the employer's discretion."

As upset as privacy advocates might be about this case, the decision follows a long line of rulings where employee privacy rights related to communications emanating from office equipment have been severely restricted or denied by the courts.

One of the most prominent cases was Quon v. the City of Ontario (California).  Here, a police officer sued over the review of what turned out to be embarrassing, sexually-explicit messages that he had sent to his wife and his mistress using a department-provided pager.  In its ruling, the court found that, due to the nature of Quon’s position and the reason for providing him with the device, he had no reasonable expectation of privacy.  Although the issue was not raised specifically, presumably an argument as to marital communications privilege would have also failed for the same reason.

Quon was not a unique decision – it was preceded by a number of cases that reinforced the right of employers to monitor the information that passes through the equipment that they provide to their employees.

In 1996, in the matter of Bohach v. the City of Reno, the court dismissed a challenge to an employer’s stated intention to review the communications that passed between two employees as part of an internal investigation.  The court found that the objecting plaintiff had not established that he had an objectively reasonable expectation of privacy in the messages at issue. 

The unique aspect about the Bohach case is that the communications system through which the messages were sent was a proprietary system purchased by the city around 1995 for sending missives to its employees.  This was not an unusual internal communication strategy for the time when considering that Microsoft Outlook was only introduced in 1997.  Because this system was a municipal installation, the court determined that the city was the system administrator, giving the city special rights as to the data.  As the system administrator, the court ultimately ruled that the city of Reno was “…free to access the stored messages as it pleased.”

In 2000, CIA agent Mark L. Simon lost the appeal of his conviction for possessing pornography, which had been downloaded to his office computer.  The court found that Simon had no reasonable expectation of privacy. Not only did the Foreign Bureau of Information Services have a well-communicated policy that prohibited the use of its computers for personal browsing, but it also gave its employees notice that the department might perform computer investigations to ensure compliance with this policy.

However, using the office computer for personal purposes does not automatically result in a waiver of privacy and privilege.  There have been cases where employee email has been protected from perusal.

One of the most prominent of these cases is Stengart v. Loving Care Agency, Inc.  In this matter, an employee filed suit against her former employer for discrimination.  However, before she quit, she used her company-provided computer to send information she felt she could use to her advantage to her attorneys.  After the litigation process began, it became clear to Stengart that her former employer had gained access to the legal strategies and documents that had been communicated with her attorneys.  It was later determined that the defendants had copied Stengart’s hard drive and used the material they found therein. 

The court decided that because Stengart had taken steps to protect her privacy by using a personal email account that was password-protected, she had a reasonable expectation of privacy that preserved her attorney/client privilege.

The takeaway from these decisions:

It is important to establish and communicate a policy regarding the personal use of business property, updating the employee personnel manual so that it clearly indicates that employees should have no expectation of privacy as to communications to or from their office computer.

Workers Comp fraud - finally real punishment for a real crime

By now many people have heard of the sentence imposed on Modupe Adunni Martin.  On Thursday, she was ordered to serve nine months in San Mateo County Jail for workers' compensation fraud. 

The 29-year-old Hayward resident was convicted of falsely claiming that she suffered an ankle injury while employed by the Sequoia Union High School District in 2009 that rendered her unable to walk.   

Martin was exposed when photographic evidence was obtained showing her scampering through a public park while wearing high-heeled shoes.  After doctors grew suspicious that Martin was exaggerating her injury, she was placed under video surveillance.  Besides the frolic in the park, Martin was filmed using crutches to walk to her medical appointments, but walking without crutches afterwards.  

At her sentencing hearing, in addition to her confinement, Superior Court Judge Craig Parsons ordered Martin to serve three years of probation after her release from custody as well as to repay over $79,000 in fraudulently-obtained benefits.

What surprised most people about the Martin case was that she was punished at all.  The state of California’s Department of Insurance notes on its website that no matter how diligent the state may be in their response to these cases, only a small portion of actual fraud is prosecuted as many fraudulent activities are not identified and, consequently, not investigated.

Unfortunately, the focus of the Martin case has been on the salacious nature of the material used to identify the workers’ compensation fraud.  (I have omitted the “juicy” details; you’ll have to read them elsewhere.)  I would like to see more observers broadcast the serious nature of the crime itself and have them advertise the serious jail sentence that was imposed as a cautionary tale to those who might contemplate similar behavior.

For too long employees have viewed workers’ compensation payments as an opportunity for a paid vacation at the boss’ expense; a chance for some compensated rest and relaxation.  The fraud usually (hopefully) begins with a genuine injury, but morphs into a situation where the employee develops a sense of entitlement to the “free” money.  Until we attack the fraud for the crime that it is, this job-killing expense will continue to spiral out of control.

It’s not that we do not ever punish those caught committing workers compensation fraud, it’s just the punishment is not normally of the type or extent that would act as a deterrent. 

As an example, I reviewed the website established by California’s Department of Insurance.  Since 2005, the state has been required to list for public review a roster of those convicted of workers’ compensation fraud.  The most recent posting is from October 2012.  It lists a single case from Los Angeles County for the entire state.  The employee named was convicted of stealing $160,203 in benefits.  The required reparation for her actions - 50 hours of community service!  She was assessed no jail time for a six-figure theft.  There was not an order issued for repayment of the stolen funds nor was there a fine to be paid for the offense.

This meager punishment is even more troubling when a review of the Insurance Department’s website shows that during the fiscal year ending in 2011, the Fraud Division identified and reported 5,741 suspected fraud cases.  The potential loss amounted to $276,894,742.  Even if we weren’t in a fiscal climate where every penny counted, this sum would still have a serious negative impact on our economy.

If the sanctions for this offense continue to be so lenient, it will communicate to potential offenders that it is well worth the risk to steal with impunity.

Hopefully, the Martin case is the beginning of meting out discipline that recognizes workers’ compensation fraud as a real crime.

I want to bring my gun to work - but don't fire me

Another case of a misunderstood employee and his gun.

 

David Weber and his lawyer insist that he was only exercising the rights available to him in the state of Maryland when he applied for a concealed carry permit.  Also, his position as the assistant inspector general of investigations at the SEC allowed him to carry a weapon.  The problem arises when you combine a disgruntled employee with a loaded weapon in the office - never a good combination.

 

Weber and his attorney would probably dispute his being labeled disgruntled.  But even Weber would admit that at the time of his application for a concealed carry permit, he was upset because he felt that allegations of misconduct that he had made about higher-ups in his agency were the reason for his termination on October 31.

 

It does not work in his favor that Weber has stated that his termination was part of a conspiracy.  The words "conspiracy" and "concealed weapon" do not go well together.

 

Weber's supervisors probably felt that they had no choice but to fire him.  He was first suspended from duty in May after co-workers reported that they felt physically threatened by Weber when he spoke about wanting to bring a gun to work.  It did not help that at one point Weber brought a bullet proof vest into the office.

 

I should clarify a point - Weber was not merely suspended; apparently Weber was placed on leave on May 8 after internal security personnel revoked his SEC identification and banned him from entering SEC headquarters in Washington D.C. 

 

The bottom line is that the SEC would have been up the proverbial creek had they not fired Weber and he later hurt someone while exercising his constitutional rights.

 

The lesson:  don't expect to be warmly embraced by your co-workers if you talk about bringing bullet proof vests and concealed weapons in the office.  Unless you work in Texas.

Disclaimer:

This site was established to provide information about the law, designed to educate users about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.

File a frivolous law suit - pay the price

Daniel Krofta and Mary Katz must have thought that they had hit the jackpot when they hooked up with the law office of Knapp Petersen & Clarke.

 

Instead they now collectively owe almost $300,000 in legal fees to their former employer and some of their fellow former co-workers may find themselves in the same boat.

 

Their dilemma arose when they decided to sue AirTouch Cellular on the grounds that they were not paid for attending mandatory meetings.  Under California's Labor Code, if you only make minimum wage, you are entitled to supplemental pay for such meetings.  In this case, both Krofta and Katz made more than minimum wage, so the judge dismissed their cases. 

 

Krofta and Katz's became liable for the legal costs of AirTouch Cellular because some sections of the California Labor Code allow the employer to receive reimbursement for attorney’s fees if they win their case.  The court determined that it was one of those sections that allow for employer reimbursement that controlled the former employees' complaint.

 

This may seem unfair to the downtrodden employee fighting for fair compensation until you consider that there are some sections of the Labor Code that state that, even if the employee wrongfully sues their former employer, only the employee has the right to be reimbursed for their legal costs.

 

The court allocated $146,000 in fees against Krofta and $140,000 in fees against Katz.

 

AirTouch could have walked away, satisfied with their victory, and not sought reimbursement of their costs.  But what better way to fend off future unmerited law suits than to let current and future employees know that if they dance to the music they'll have to pay the band.

 

The lesson:  Employees should not expect to put their employer through the expense of a law suit and not have to pay the cost (literally and figuratively).

 

Disclaimer:

This site was established to provide information about the law, designed to educate users about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.

 

 

No social media right to privacy - Roberts v. CareFlite

The issue about employee social media privacy rights has been addressed again, but the circumstances are such that this case may not add much clarity to the matter.

 

Janis Roberts sued her former employer CareFlite for unlawful termination and for invasion of her privacy.  Roberts was "friends" on Facebook with another CareFlite employee.   Roberts posted on his Facebook wall that she had transported a patient that needed restraining and that she had wanted to slap the patient.

 

The sister of Sheila Calvert, a compliance officer with CareFlite, saw the post and told her sister about the communication.  Calvert sent a message to Roberts saying, in part, "I just wanted to remind you that the public sees your posts...you could be looking at a suspension of your EMS license and fines...I am trying to help you realize that people out there are losing their jobs and livelihood (sic) because of such posts and I don't want to see that happen to you...I hope you will consider removing that post."

 

When Roberts countered that the patient needed "an attitude adjustment", Calvert responded that Roberts' words might be a violation of Texas law [Rule 157.36(b)(28) of the Texas Administrative Code] that states that you cannot engage in activities which might erode the public's confidence in the Emergency Medical Services.  Roberts' retort might be best described as dismissive.

 

Apparently not satisfied with her sister's handling of the situation, Calvert's sister sent an email outlining the post to the CEO of CareFlite.  Roberts was subsequently terminated.

 

Roberts sued for wrongful termination and invasion of privacy.  In later pleadings, Roberts argued that the NLRB has prohibited employers from restraining employees from discussing the conditions of their workplace.

 

However, the court found the real issue was whether the company intruded upon Roberts' privacy in a manner that would be offensive to a reasonable person.  Not feeling that evidence provided  supported Roberts' position, the court ruled against her.

 

Unfortunately, the case was not limited to a decision about social media rights.  It is complicated by a state law that prohibits one from engaging in activities that might cause the public to lose trust in the state's EMS system.  Further muddying the decisional waters - the court appeared to decide the case not so much on the issue of privacy rights, but on what appears to be their dissatisfaction with the quality of Roberts' brief.

 

The lesson learned:  the courts continue to deny social media participants a special privacy right. 

 

Disclaimer:

This site was established to provide information about the law, designed to educate users about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.

 

Job recommendations for the bad employee

It is not enough that you have to worry about firing a bad employee; now you have to be concerned about what to say about him when he's gone.

There has been an explosion in cases involving former employees suing for defamation, slander and discrimination.  This issue arises when an employer gives a job reference that the former employee feels is incorrect and harmful to their reputation.  In other words, this situation emerges whenever you fail to give someone a favorable job reference - whether the reference is honest or not.

Many employers attempt to avoid being squeezed between veracity and litigation by only providing the most rudimentary information about the departed employee:  a confirmation of their employment, their dates of employment, the last position they held and, perhaps, their final salary or wage rate.  However, that in itself may be a form of negative review.  After all, if you had a great relationship with a former employee, you would be effusive in your praise, extolling his every workplace virtue.  You would only be close-mouthed about the person you are glad has left.

In the face of this dilemma, many employers choose to lie - they give the employee a great reference in the hope that he will become someone else's problem.  (And don't let the door hit you on the way out!)

But giving someone an undeservedly-positive appraisal carries a risk all its own.  It may result in being sued for "negligent referral."   Essentially, the former employer knows of some harmful trait regarding the applicant's behavior and fails to communicate this matter to prospective employers.

Normally, the current or former employer does not have a duty of care to future employers; they don't have to pass on negative information about an employee.  The obligation arises when the employer chooses to discuss the employee and is less than completely forthright.

One of the cases that best demonstrates the problem of negligent referral was decided in California.

In Randi W. v. Murom Joint Unified School District, a serial child molester was employed by three separate school districts between 1985 and 1991. In each district, he was found to have had inappropriate sexual contact with students.  Even though he was twice forced to resign, each of the school districts provided positive letters of recommendation. 

In deciding the case, the court held that, "ordinarily a recommending employer should not be held accountable to third persons for failing to disclose negative information regarding a former employee, nonetheless liability may be imposed if, as alleged here, the recommendation letter amounts to an affirmative misrepresentation presenting a foreseeable and substantial risk of physical harm to a third person."

This is a unique case.  Hopefully, none of your former employees present the same degree of risk of harm to other persons.

The lesson to be learned:  if you decide to issue a reference, you are required to communicate the good, the bad and the ugly.

Disclaimer:

This article was published to provide information about the law, designed to educate readers about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.

The virtue of consistency in defending against a claim of discrimination

Many unflattering things have been said about the trait of consistency.

 

George Bernard Shaw asserted that consistency was the enemy of enterprise.  Worse, Ralph Waldo Emerson pronounced that consistency was the hobgoblin of little minds.   The cruelest cut of all:  Aldous Huxley's claim that the only completely consistent people are the dead.   

 

But, if you ask the Texas Department of Criminal Justice, being consistent is a saving grace when defending oneself against a claim of discrimination.

 

A few years ago, the TDCJ believed that employee Phyllis Shanklin was abusing her paid sick leave, so when she asked for FMLA time to recuperate from a back injury, they asked for documentation from her treating physician.  When they didn't receive it, Shanklin was fired.  In response to her termination, Shanklin sued the TDCJ, saying that she was fired due to racial discrimination.

 

Court rulings have determined that in order to prove an allegation of disparate treatment based on race, one must show that there are situations where individuals were treated more harshly than others of another race.  This means that employers must treat employees with consistency.

  

The TDCJ was able to demonstrate that they were consistent in the manner in which they applied corrective measures.

 

On the other hand, Shanklin conceded that she had no evidence that her employer had made its decisions on any discriminatory basis.  She could not point to a single employee of another race or color who wasn’t fired for responding to a supervisor's request in the same manner and in the same situation.

 

It did not help her case that one of the people that approved of her punishment was Warden Diana Oliphant, who is also African-American.

 

Shanklin's claim of discrimination was dismissed before trial; the jury rendered a verdict against her on the remaining counts.  She lost her appeal.

 

Consistency may not be artistic, but, when dealing with employees, consistency may be the foundation of judicial victory.

 

As was once said by Sir Francis Bacon, "Look to make your course regular, that men may know beforehand what they may expect."

 

When an employer's course is regular - when they act with consistency - judges and juries will respond accordingly. 

 

Disclaimer:

This article was published to provide information about the law, designed to educate readers about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.

 

Contract issues - the "mailbox rule" in the 21st century

In the olden days - the 1990's - a party in a contract dispute could rely on the common law doctrine that a contract deposited into a mailbox with the proper postage within the contract acceptance period was an accepted contract, binding upon the offeror. 

But what happens in a day and age when no one mails letters?

We will soon find out when the U.S. Court of Appeals for the Ninth Circuit renders its decision in the matter of Paramount Farms v. Ventilex B. V..  Paramount Farms bought a $300,000 piece of machinery from Ventilex USA.  The former claimed that the latter guaranteed that the equipment would be certified for use in the US.  The equipment wasn't certified.  Paramount wanted their money back.  Ventilex USA said no.  The fight was on.

The "mailbox rule" issue arose because Paramount claimed that Ventilex B.V. had guaranteed that their equipment would pass certification by not protesting when Paramount sent an email to the vendor requesting confirmation of the guarantee.  Ventilex B.V.'s defense - how do you know that we received the email?

The legal issue is whether Ventilex USA was made an agent of Ventilex B.V., making the parent company equally liable for any contract breach, by virtue of copying the parent on the emails in question.  This is important because Ventilex USA declared bankruptcy after the dispute arose, so recovery is only available from the parent company.

However, U.S. District Judge Lawrence O'Neill of Fresno had ruled previously that agency - and with it, liability - was not created just because the parent did not challenge the terms established in the emails.

Which means that if the Ninth Circuit affirms the prior decision, Paramount Farms will have to line up behind Ventilex USA's other creditors in bankruptcy court.

For the rest of us, it will be the beginning of the determination as to whether we can legally rely on having sent an email.

We will have to wait and see.

Disclaimer:

This article was published to provide information about the law, designed to educate readers about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.

 

An "evil mind", but not $55 million worth of evil

Before reading further, please note that this case arises out of the state of Arizona, so it may have little applicability to California.

 

An Arizona jury awarded a couple $55 million in punitive damages in an insurance bad faith case.   While the Court of Appeals found that the company was eligible for punitive damages, they (fortunately) found that $55 million was excessive.

 

This case started with a stolen auto.  The remains of the vehicle were found south of the border, its exterior trashed, its interior ruined.  Unfortunately for the insureds, MetLife did not find that the car was damaged beyond repair.  MetLife decided that they wanted to repair the auto, although the policy holders wanted it totaled.  (Based on a description of the damages, I would not feel comfortable with repairs either.) 

 

The insurance company held their position, eventually sending the couple a check in the amount of $11,000 to cover the cost of repairs and telling the insureds to do with the check and the car as they saw fit.  Because the loan balance on the vehicle apparently exceeded the funds received from the insurance company, the policy holders turned over the car and the check to the bank, agreeing to the repossession of the vehicle.  Then they sued their insurance company.

 

For the insurance company to play hardball with its policyholders and take the case before a jury was a bad strategy.  The only group that juries hate more than attorneys are insurance companies.  The jury awarded the plaintiffs a not-unreasonable sum of $155,000 in actual damages, but granted the plaintiffs an eye-popping $55 million in punitive damages.

 

What could have influenced the jury's calculations?  It may have been because evidence presented demonstrated that the insurance company had instructed its employees to "manage" its claims settlements aggressively (my words) in order to meet company profit goals. 

 

Fortunately for MetLife, the Court of Appeal examined the requirements for awarding and calculating punitive damages and adjusted the verdict.

 

First of all, in Arizona, before punitive damages can be awarded, the defendant has to have been determined to have an "evil mind".  Among the issues considered by the Court were whether the harm caused was physical versus merely economic, whether the company's conduct showed a reckless disregard of the health or safety of others, whether the plaintiff was especially vulnerable, whether the conduct was part of a regular practice or was an isolated incident and whether the harm was intentional or accidental.

 

In this case, the court found that, while the insurance company's treatment of the plaintiffs was "evil", it was only a little evil; more a case of failure to supervise its employees rather than a plan to oppress its policy holders.

 

The next issue to be considered is whether, even if punitive damages are warranted, the amount of damages is reasonable.

 

The jury award of punitives amount to about 355 times the amount of actual damages.  Even though the superior court had reduced the punitives to about 4 times the actual damages, the court of appeal found that this was still too high when the defendant was only a little "evil".  The Court of Appeals reduced punitives to the same amount as actual damages - $155,000.

 

So the plaintiffs will no longer be able to purchase their own county, but they will be able to replace their vehicle.

 

The lesson here:  unless you settle, you will eventually have to make your case to a jury, which may judge you based on your reputation rather than the facts of the case. 

  

Disclaimer:

This site was established to provide information about the law, designed to educate users about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.

 

An employee's workers compensation cautionary tale

Recently, Thomas Krushauskas learned that you cannot be healthy and disabled at the same time.

In July of 2005, during the course of his duties as a stock picker at General Motors, Mr. Krushauskas injured his right shoulder.  After attempting to continue to work for two months despite his injury, Krushauskas finally filed for workers compensation benefits.  He began receiving compensation as of September of 2005.

In May of 2006, Mr. Krushauskas was invited to attend GM’s Attrition Plan meeting.  He was not singled out for the Attrition Plan; being a member of the United Auto Workers union he was automatically invited.

As the meeting title implied, GM was offering employees the option to voluntarily terminate their employment with the company.  Under the terms of the Plan, employees received a lump sum payment as compensation for their voluntary severance.  In order to show acceptance of the conditions of the Plan, the employee had to sign a document designated Form A stating that the employee was not signing the Plan agreement under duress and was not disabled. The employee also had to sign Form B which contained a general release of all claims against GM, including any loss of disability pay or benefits.

Krushauskas subsequently signed Forms A and B and received a payout of $35,000.

GM terminated Krushauskas' workers compensation benefits effective July 1, 2006.

In response, Krushauskas filed a grievance with the Workers Compensation Appeals Board stating that GM terminated his benefits without obtaining a supplemental agreement to do so, or notifying Krushauskas of a benefit offset, or obtaining a judicial order permitting GM's action - all of which are set forth in the Workers Compensation Act as requirements before terminating benefits.  Krushauskas also stated in the grievance that it was not his intention to retire.

Although the Workers Compensation Judge found that GM violated the Act by unilaterally suspending Krushauskas' benefits on July 1, 2006, without taking the required preliminary actions, the judge concluded that there was no basis for GM to be penalized because Krushauskas was not denied compensation due to GM's action.

The judge found that no damages were owed to Krushauskas because he voluntarily retired from GM when he signed the agreements related to GM’s Attrition Plan.  Based on that finding, the judge issued an order which essentially retroactively suspended Krushauskas' benefits effective July 1, 2006 - some six years after the fact.

The judge's decision was recently affirmed by the Commonwealth Court of Pennsylvania

Krushauskas did not claim that he did not understand the documents.  Also, after signing the Plan documents, Krushauskas had 45 days to revoke his acceptance, which he failed to do.   In addition, the judge's findings of fact note that, "(t)he Claimant initially testified that he did not decide to retire. The Claimant subsequently acknowledged that he did retire. The Claimant’s testimony regarding his physical condition and reasons for not returning to work is inconsistent with Paragraph five of Form B of the Employer’s special attrition plan. The claimant acknowledged that Form B . . . of the Employer’s special attrition plan sets forth that the acceptance is not under duress, and that he is able to work and suffers from no disability that would preclude him from doing his regularly assigned job."

So, Mr. Krushauskas is now out of work and out of benefits.

Which goes to show:  you can't eat your cake and have it, too.

Disclaimer:

This site was established to provide information about the law, designed to educate users about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.

What do your employees do when a "Sandy" strikes?

his article is not intended to tell business managers what they must do when a catastrophe strikes - the required tasks will vary from firm to firm.  But this article is intended as a reminder that you have to do something - and you'd better so it before disaster arises.

Although most businesses will never have to face an event of the magnitude of a Hurricane Sandy, there is always the possibility of a misfortune occuring that will prevent your employees from coming to work and performing their regularly-assigned duties. Fires, police actions and power outages can occur anywhere and at any time.  (Not to mention tornadoes, earthquakes and floods.)

The first question to address is, should your employees come to work at all?  Maybe the risk of injury is too great to have employees trying to navigate the premises.

The next question is, if they can't come to work, what communications plans are available? How will you tell your employees not to come to work?  Do you have an employee page on your web site where you can post such information?  Are employee telephone numbers stored off-site for access when you cannot enter the office?  Who will contact the employees?  Will they be able to contact their direct supervisor?

Another important issue to address ahead of time is, if employees don't show up for work, are they going to be paid?  Just as important, if they show up for work and the facilities are unfit for work, will they be paid? 

If you expect someone to show up for work and they don't, will they have to take some sort of leave in order to be compensated during their absence?  Under what circumstances will they be terminated for failing to return to work?  (At least 45 officers and six civilian employees were fired by the New Orleans Police Department for abandoning their posts following Hurricane Katrina.)

The answers to these questions may be unique to your industry and the nature of your employees' work.  Obviously, someone who works online is not in the same situation as an assembly line worker whose factory has burned down.  (Assuming, of course, that the internet worker has the internet available.)

As I have said many times before about other matters, you need to address these issues in your employee handbook before the stuff hits the fan.  You need to outline:

How to contact the company if conventional lines of communication are crippled?

Who do you expect to make the greatest effort to come into the office  - perhaps a manager who needs to inspect the damage, security personnel who need to protect the facilities?

Who do you need to contact in case of an emergency- your insurance agent, your security personnel, your landlord?

How will you handle compensation for absent non-exempt (hourly) employees?

Are you prepared for the special issues pertaining to telecommuting - online security, sharing of data, access to client contact information?

How safe are your company assets if no one shows up at the office?

These are just a few of the many questions that you must address before the next "Sandy" strikes.

Disclaimer:

This site was established to provide information about the law, designed to educate users about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.

Yes, dropping one's pants is cause for termination

As the title implies, someone actually challenged their termination "for cause" when they mooned their supervisors.

In 2005, regional powerhouse Wanger Asset Management merged with Bank of America's Columbia Management and there was a reorganization of staff.  Chicago investment banker Jason Selch became  upset when he learned that a friend was being fired for not accepting a lower salary to remain with the company.

When Selch learned that Columbia COO Roger Sayler was meeting with Selch's supervisor Charles McQuaid, Selch burst uninvited into the conference room.  After first asking the two whether he was bound by a non-compete clause with the company and receiving a negative response, Selch "proceeded to unbuckle his pants, pull them down, and 'moon' Sayler and McQuaid," according to court filings.

Surprisingly, McQuaid did not want to fire Selch after this display - Selch was a rainmaker and McQuaid feared the impact of his loss on the unit's profitability.  But corporate wisdom prevailed.  Columbia CEO Keith Banks believed that allowing such an actor to remain employed in their division would undermine their authority and diminish morale.

Selch was terminated "for cause", which meant the loss of significant severance benefits.

Not surprisingly, Selch sued BofA.  He stated that he shouldn't have been fired "for cause" because pulling down his pants didn't interfere with his official duties.

Fortunately, the appeals court upheld the lower court ruling that Selch's termination was proper as his behavior was "insubordinate, disruptive, unruly, and abrasive."

In my opinion, Selch's case had no merit from the start.  Prior to his derriere display, Selch asked if he was subject to a covenant not to compete - meaning he would be contractually prevented from seeking another position in his field.   He later admitted that he wanted to know ahead of time if he would have difficulties seeking a new position as a consequence of his action.  This indicates to me that he knew that loss of his job was a reasonable and expected consequence of baring his bottom.

Please note that there is a serious HR issue that arose during this case.  After the mooning, but before the termination, Selch was given a warning letter stating that any further displays would be cause for termination.  This letter allowed Selch to argue that he was being giving one more chance before he might be terminated, therefore allowing him to claim a breach of contract.  Luckily for BofA, the court did not find that the written warning constituted a contract.  BofA could still fire him for the mooning.   

The price of Selch's protest was steep - he is reputed to have lost $2 million in benefits forfeited as a result of being fired "for cause".  But I don't feel sorry for him.   Online resources show that he is now an executive with an energy company as well as a mega-investor.  He also made a million dollars in profit last year off the sale of one of his homes.  So Selch has apparently rebounded from his professional setback.

The lesson for employers: don't give an employee cause to believe he is not really being fired.  Be decisive - show him to the door.  Any subsequent reversal of action may give the employee justification to sue for wrongful termination.

The lesson for employees: keep your pants on - at least until your benefits have vested. 

  

Disclaimer:

This site was established to provide information about the law, designed to educate users about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.

I bought that book, I can do with it what I want...can't I?

What do you do with a book when you are done reading it?  Do you lend it to a friend (with no expectation of it being returned)?  Do you donate it to Goodwill Industries or the Salvation Army so they can sell it to fund their projects?  Do you list it on eBay or Craigslist?

All of those options are your right based on what is known as the "first sale" doctrine of copyright law.  This doctrine is the general rule that allows a lawful purchaser of a copyrighted item to lend, donate or sell that CD, DVD, book or painting as they see fit without first obtaining permission from the copyright holder. 

But, if book publishers have their way, that doctrine may be modified or abandoned.

It all started when an enterprising young man from Thailand transferred to an American university.  He noticed that some text books were selling for less in Asia than they did in the States. So he purchased a quantity of the books in his homeland and resold them at a (considerable) profit in the U.S.

Publisher John Wiley & Sons became aware of this venture and was none too pleased with the student's ingenuity, so they sued.  According to court filings, the publisher, as well as like-situated vendors, wants to protect their practice of selling their goods for different prices in different markets.  They have argued that the "first sale" doctrine should apply only to goods produced in the U.S.

Wiley has won its court battles so far, but now the matter is going to be considered by the U.S. Supreme Court.

The book seller's position is being championed by the Owners' Rights Initiative, an organization devoted to the rights of the reseller.  Their online slogan is "You Bought It, You Own It. (You Have a Right to Resell It)."   But there are those less obvious about their positions that support the bookseller.  Some who deal in the business of selling "seconds" are worried that they will be responsible for tracking the national origin of the goods they resell.

Media merchants insist that any change in the law will not apply to simple transactions between associates. 

But the Supreme Court does not usually issue decisions with a disclaimer that says "This ruling really doesn't apply to you."

Disclaimer:

This site was established to provide information about the law, designed to educate users about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.