Compassionless Court Kicks Marijuana Claim

By Michael P. Stafford

Marijuana is back in the news here in Delaware. Our state’s first Compassion Center is set to open later this month and legislation decriminalizing the sacred herb has been signed into law by Governor Jack Markell.  medical marijuana_3

Delaware is by no means unique-it is part of a national trend towards decriminalization and even legalization occurring at the state level across the nation. However, as far as the federal government is concerned, marijuana remains illegal. Essentially, America is becoming a veritable patchwork quilt of differing, and inconsistent approaches-a situation that is creating headaches for employers, particularly those with national or multi-state operations, striving for consistency and uniformity in their drug policies.

A recent case from Colorado, Coats v. Dish Network, LLC, illustrates the conundrums employers now face.

Brandon Coats, a quadriplegic who suffered from painful muscle spasms as a result of his condition, began working for Dish Network as a telephone customer service representative in 2007. Subsequently, in 2009, he obtained a Colorado license to use medical marijuana. The next year, a random drug test revealed the presence of THC metabolites in his system, and his employment was terminated in accordance with Dish Networks drug policy. Significantly, there was no allegation that Coats ever used, or even possessed, marijuana in the workplace.

Coats sued Dish Network, relying on a Colorado statute that prohibits employers from discharging employees for “lawful activities” outside the workplace. In Coats’ view, Dish Network was prohibited from penalizing him for smoking medicinal marijuana lawfully under Colorado law during his free time. Dish Network disagreed, and argued that Colorado law didn’t apply because smoking marijuana was still unlawful under federal law.

Surprisingly, the Colorado Supreme Court agreed with Dish Network, concluding that the term “lawful activities” wasn’t restricted to those permitted under Colorado law but instead also encompassed federal law. As a result, because marijuana use remains illegal under federal law it could not be a “lawful activity,” and Dish Network was free to fire him based on the results of the drug test.

Obviously, the decision isn’t directly applicable to Delaware- we don’t have an analogous provision to Colorado’s “lawful activities” statute in our law and medicinal marijuana cardholders are protected directly in other ways. For example, under Delaware law although employers are not required to permit cardholders to possess, use, or be under the influence of marijuana in the workplace, a cardholder “shall not be considered to be under the influence of marijuana solely because” a drug test reveals “the presence of metabolites or components of marijuana” in their system. As a result under Delaware law, the mere presence of THC in Coats’ system would not have been a lawful basis for terminating his employment; Dish Network would have also had to demonstrate that he was “under the influence”- a tricky proposition for employers given the lack of agreement on generally accepted standards for measuring marijuana impairment.

Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. Ct. App. 2013).

Facebook Threats Constitute Legitimate Grounds for Termination

Earlier this week, I wrote about the issue of threats made via Facebook constitute constitutionally protected speech.  Today’s post also is about threats made via Facebook but in the context of the workplace.  The case, decided by the Court of Appeals of Ohio, is timed perfectly for my road trip tomorrow to Ohio. social media letterpress_3

In Ames v. Ohio Department of Rehabilitation & Correction, an employee, a Senior Parole Officer, was sent for an independent medical exam after she posted a Facebook comment that her employer believed to be a threat.  The comment was in reference to shooting parolees.  The employee claimed that the comment was a joke.  The psychologist who conducted the exam cleared her to return to work, finding no evidence of depression, anxiety, or mood disturbance.

A few months later, the employer received an “anonymous” complaint that the employee was using her state-issued computer for non-work purposes.  It turned out that the complaint actually was made by the new partner of the employee’s ex-girlfriend.  The new partner, of course, was a co-worker. There was an investigation and the employee was issued a written reprimand.

A few months later, the co-worker (partner of employee’s ex), files an incident report alleging that the employee had sent a threatening text message to the co-worker and the ex.  A few weeks later, the employee filed an incident report against the co-worker, alleging that the co-worker had used a state computer for, you guessed it, non-work-related purposes. An investigation was begun.

Days later, the co-worker notified the employer that the ex had filed for an order of protection against the employee.  In the motion, the ex claimed that, two years earlier, the employee had held a gun to her head.  The employee denied that any such incident had occurred.

In any event, the employer sent the employee off for a second IME, this time to discover whether she had a “propensity for violence.”  Now, I’m no psychologist, but I’m pretty sure that there’s no widely accepted methodology for determining whether a person has a “propensity for violence.”  Apparently, the psychologist who conducted the IME had similar doubts and gave an inconclusive report, failing to address whether the employee had any such “propensity.”  So the employer sent her off for a third IME, this time specifically asking the examiner to make such a conclusion.

The examiner declined to make such a finding, explaining that there is (as I believe I may have mentioned) no reliable way to make such a determination.  Nevertheless, a few months later, the employee posted a threatening message on Yahoo! Messenger to the ex.  She denied sending the message but resisted the employer’s attempts to determine if the account had been hacked.  As a result, she was terminated for the threat and for failing to cooperate in an investigation.

The employee sued under the disabilities laws, claiming she’d really been terminated because the employer perceived her to be disabled.  The employee lost, appealed, and lost again.

So, what are the lessons to be learned here?  Oh, my, there are so many.  Too many to discuss in full so I’ll give you the redux in bullet points:

1.  Love triangles in the workplace usually end badly.

2.  Threats of violence made via Facebook can serve as grounds for discipline.

3.  Failure to cooperate in an investigation constitutes grounds for discipline.

Ames v. Ohio Dep’t of Rehab. & Correction, 2014-Ohio-4774 (Oct. 28, 2014).

A Perk of BYOD Policies at Work

Employers face a serious challenge when trying to prevent employees from taking confidential and proprietary information with them when they leave to join a new employer-particularly when the new employer is a competitor.   When an employer becomes suspicious about an ex-employee’s activities prior to his or her last day of work, there are a limited number of safe avenues for the employer to pursue. privacy policy with green folder_thumb

Generally, an employer should not review the employee’s personal emails or text messages if they were sent or received outside the employer’s network.  But what if the employee turns over his personal emails or text messages without realizing it?  The answer is, as always, “it depends.”  A recent case from a federal court in California addresses the issue in a limited context.

After the employee resigned, the employer sued him for misappropriating trade secrets.  He filed counterclaims, accusing the employer of violating the federal Wiretap Act, the Stored Communications Act (SCA), and state privacy laws.  The employee alleged that the employer had reviewed his text personal text messages on the iPhone issued to him by the former employer after he’d returned it but before he unlinked his Apple account from the phone.

All of the employee’s counter-claims were dismissed by the court.  The court found that the Wiretap Act claim failed because there was no allegation that the employer had intentionally intercepted any messages.  The SCA claims failed because there was no allegation that the employer had accessed any messages.  And, perhaps most obviously, the privacy claims failed because the employee could not have had a reasonable expectation of privacy.

The court specifically found that the employee had “failed to comport himself in a manner consistent with objectively reasonable expectation of privacy” by failing to unlink his old phone from his Apple account, which is what caused the transmission of his text messages to his former employer.

Sunbelt Rentals, Inc. v. Victor, No. C 13-4240-SBA (N.D. Cal. Aug. 28, 2014).

See also

Too Creepy to Win: Employer Access to Employee Emails

Traveling for Work and Late-Night Emails

Lawful Employer Investigations of Facebook . . . Sort Of

Employers, Facebook, and the SCA Do Not a Love Triangle Make

The Role of a Distracted-Driving Policy in a BYOD Workplace

“Risks and Rewards of a BYOD Workplace” was the subject of one of my presentations at our annual employment-law seminar last week.  [FN1]  More and more employers are adopting BYOD policies.  BYOD, which stands for “Bring Your Own Device,” eliminates the need for employers to give employees a smartphone or tablet for work-related purposes.  Instead, the employee brings his or her own device and uses it for both work and personal purposes.
text alert_3The State of Delaware was an early adopter in the BYOD arena.

Although BYOD policies are popular, they are not risk free.  One (of the many) dangers of employee use of mobile technology is the potential for distracted driving.  Regardless of who owns the device, employers may face liability for an employee who harms a third party due to the employee’s negligent use of a smartphone while driving.

Many cities and municipalities now prohibit drivers from operating a vehicle and using a cellphone unless they use hands-free device.  Although this is a great start, it may not be enough to prevent liability for employers.  The U.S. Department of Labor, for example, takes a very firm stance on this issue, stating:

Employers have a responsibility and legal obligation to have a clear, unequivocal, and enforced policy against texting while driving.

I’m not entirely sure that I would agree with this statement-I don’t know of any “legal obligation” to have a distracted-driving policy.  But I do think that employers should have a distracted-driving policy.

The good news is that the federal government has provided a sample distracted-driving policy for employers to use.  The policy is short and to the point and it makes clear that employees are prohibited from using a hand-held cellphone or smartphone while operating a vehicle.

If you don’t have a distracted-driving policy, consider whether this sample policy, provided by the National Highway Safety Transportation Administration, isn’t worth implementing.  Even if it’s just a starting point, employers are well advised to have something in place to prevent employees from endangering themselves or others while operating a vehicle.  The NHSTA offers additional resources to employers who want to take further steps to prevent distracted driving by employers.

And, remember, just because it’s the employee’s own device does not mean that the employer won’t be held liable.  A BYOD workplace is not a defense to a claim of negligence for harm caused by an employee in the course and scope of his or her employment.

 

[FN1]  Thank you to everyone who attended-it’s always great to see clients and friends in a context that does not involve pending or threatened litigation.

Story of Delaware Medical Examiner Offers Lesson for Employers

Delaware Chief Medical Examiner Richard T. Callery has made news headlines for his off-duty conduct.  According to The News Journal, Callery is the subject of a criminal investigation relating to his testimony as an expert witness in cases outside of Delaware. 

In short, the claim is that Callery spent a lot of time serving as a paid witness in cases in other States, while neglecting his own duties.  And, to add insult to injury, Callery apparently testified on behalf of the defense in several cases, which, some argue, diminishes his credibility when called to testify in Delaware on behalf of the State.

The lesson to be learned for employers is an important one.  Many employers put limitations on moonlighting by employees.  Such limits may be included in an employment contract or in a personnel handbook. 

The policies vary.  For example, some employers prohibit employees from working in a second job altogether.  Others prohibit only secondary employment in the same field or with the same duties that the employee performs in his or her full-time employment.  And others only prohibit secondary employment that conflicts with the employee’s job duties. 

The State of Delaware, like many employers, does not have such a policy.  But, if it had, it would likely have prohibited Callery from working as an expert witness, even in his off-duty time.  Do you have such a policy?   Should you?

See ME’s side work under criminal investigation, by Jonathan Starkey and Sean O’Sullivan.

Your Employees Are (Still) Stealing Your Data

The Wall Street Journal recently reported some eye-opening results of a survey regarding information theft by employees.  Here are some of the most disturbing (though not surprising) findings from the survey:

  • 50 percent of employees kept confidential information post-separation;
  • 40 percent plan to use confidential information in their future employment; and
  • 60 percent say a co-worker has offered documents from a former employer

So what do these statistics say? In short, they say that your employees are stealing your intellectual property. data thief robber_3

And here are two more interesting findings:

  • 52 percent of employees don’t believe that it’s a crime to use a competitor’s confidential business information; and
  • 68 percent of employees say their organization doesn’t take preventative measures to ensure employees don’t use competitive information.

So what do these statistics say? Well, they say that neither your former employees nor their new employers think there’s anything wrong with stealing and using your intellectual property.

These statistics don’t surprise me at all. Theft of confidential information by departing employees is an epidemic. In my experience, it is one of the biggest challenges faced by employers today. Perhaps the single biggest.

And making matters worse is the fact that most employers don’t know that it’s happening. But it doesn’t have to be this way. Here are some things every employer can do to limit the impact of this epidemic:

Have a policy. Employers should have a confidentiality policy that all employees are required to sign-separate from the employee manual is preferable.

Educate employees. Once is not enough. Employees should be required to re-sign the policy each year. Yes, really. This is a very serious problem and there is no such thing as being too proactive to prevent it.

Use technology. Employees walk away with your data in any number of ways but almost always in a way that involves technology, so put technology to work for you. For example, consider utilizing software that alerts IT any time an employee sends a large number of attachments via email. Limit access to Dropbox and similar cloud-storage sites from work devices.

Ask the tough questions. Even if you’ve done nothing to limit electronic theft beforehand, there’s no time like the present. Ask every departing employee to confirm in writing that he is not in possession of any company property (including in electronic form) and promise that, should he later discover that he does have your property, that he will return it immediately.

See also  Your Employees Are Stealing Your Data

UD Employees’ Confidential Info Hacked

What to Do If Your Employees’ Confidential Data Is Stolen

Computer Fraud and Abuse Act: Government to the Rescue of Employers?

Putting the Computer Fraud and Abuse Act to Work for Employers

Court Finds Duty to Preserve Personal Emails of Employees

The modern workplace presents a cornucopia of problems thanks to technology.  As much as employers may want to restrict employees from surfing the Internet or checking Facebook during working time, it’s nearly impossible.  After all, employees can just use their personal cellphones to get online.  Add to that reality the fact the growing popularity of BYOD policies.

So what, you might ask?  Well, one big problem is when an employee uses his personal device or account for company business.  The issue of whether the employer is deemed to have custody or control over an employee’s work-related emails sent to and from the employee’s personal email account.byod security_thumb

In a recent case in Kansas, the court found that the employer did not have possession, custody, or control of employees’ personal emails and therefore did not have to produce the emails in discovery.

But a new case from Puerto Rico takes a different approach.  In P.R. Telephone Co., Inc., v. San Juan Cable LLC, the court found that the company did have a duty to preserve relevant email from the personal email accounts of three of the company’s former officers.  The only facts given by the court as the basis for its decision is that the company “presumably knew” that its officers had used their personal email accounts to manage the company for seven years.

Although the court did not order sanctions, it did find that there was a failure to preserve relevant evidence.  The court denied the motion for sanctions without prejudice, leaving open the possibility that the motion could be renewed if discovery revealed additional evidence of spoliation.

P.R. Telephone Co., Inc., v. San Juan Cable LLC, No. 11-2135 (GAG/BJM), 2013 U.S. Dist. LEXIS 146081 (D.P.R. Oct. 7, 2013).

[H/T Bow Tie Law Blog]