Articles Posted in Policies

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.

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.

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.

“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.

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 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

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.

BYOD at work is all the rage. What is BYOD, exactly? Well, it stands for “Bring Your Own Device” and, put simply, it means that an employee uses his own smartphone, tablet, or laptop for work as well as for his personal purposes.  BYOD policies raise several concerns, including increased security risks and wage-and-hour issues for work performed at home.  Another issue is one of particular interest to litigators like me-the question of how BYOD policies will affect e-discovery.  In other words, will an employer be on the hook for the preservation of its employees’ personal devices if those devices are used for work and for personal purposes?text alert_3

The answer to this question can have wide-reaching impacts. For example, if the answer is, “yes,” the employer would be responsible for ensuring that each such device is preserved immediately upon the threat of litigation. But telling your employees to submit their personal smartphones to the company’s lawyers is probably not going to go over so well.

A recent case from a federal court in Kansas gives hope to employers who want to permit employees to use their own devices without risking liability for failing to preserve those devices should litigation arise.  In Cotton v. Costco Wholesale Corp., the District of Kansas denied the employee-plaintiff’s motion to compel text messages sent or received by employees on their personal cell phones. The court’s decision was based on the fact that the employee had not shown that the employer had any legal right to obtain the text messages.  In other words, that the phones and the data they contained were not in the “possession, custody, or control” of the employer.

Being beautiful ain’t all it’s cracked up to be.  Or so it seems from the legal-news headlines.

First, there are the “Borgata Babes.”  The female cocktail servers at Borgata Hotel and Casino in Atlantic City, known as Borgata Babes, challenged the legality of their employer’s policy prohibiting them from gaining more than 7% of their body weight after they were hired.  The Babes lost the lawsuit, though, when a New Jersey judge granted Borgata’s motion for summary judgment.

The cocktail servers alleged that the hotel created a culture of humiliation and harassment with its dress

Employee resigns. But before her last day of work, Employee copies thousands of emails and documents from Employer’s computer.  Off goes Employee into the sunset.

How often is this scenario?  I bet most employers think this never happens in their workplace. I’d be willing to bet that it happens in almost every workplace.  It happens with such regularity, yet most employers are absolutely stunned to discover that it’s happened to them.3d thief cracks safe_thumb

If you think it doesn’t happen pretty much all of the time, check out this post at the uber-popular website,, titled, How Can I Save All My Work Emails for a Personal Backup?  A reader submitted the following question:

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