Disclosing Information Regarding Past Felony, Quirky Question # 38
Quirky Question # 38:
Our company is a food retailer. We hired a convicted sex offender, who, after serving time in prison for his felony conviction, had been released. Given that he had “paid his debt to society,” we felt that we should not refuse to hire him because of his prior conviction. Moreover, because the job for which he was hired involves very limited interaction with the public, we were not concerned about any risks there.
Very few employees in our organization are aware of our employee’s prior conviction and incarceration, but as the Director of Human Resources, I am knowledgeable about the employee’s felonious past. It recently came to my attention that one of our other employees occasionally has allowed the convicted sex offender to baby-sit for her pre-teen daughter. Do I have a legal duty to intervene? What are the risks of intervention? Are there any risks to non-intervention?
Roy’s Analysis:
Several weeks ago, I addressed the fundamental issues involved in the legal theory of “negligent hiring.” (See Quirky Question # 26, or access it by using the “View by Topic” tab at the upper right). As I explained previously, in the seminal Minnesota case on that topic, Ponticas v. K.M.S. Investments, the Minnesota Supreme Court emphasized that “an employer has a duty to exercise reasonable care in view of all the circumstances in hiring individuals who, because of their employment, may pose a threat of injury to members of the public.” As your question demonstrates, you already have given some thought to this issue. You are fully aware of the employee’s past conviction and as you note, given the employee’s limited interaction with the public, you do not feel that you are exposing the public (and, ultimately, your company) to risk on that front.
A decade after the Ponticas decision, another grim case made its way through the Minnesota judicial system that implicated analogous issues. That case, Yunker v. Honeywell, Inc., 496 N.W.2d 419 (Minn. Ct. App. 1993), involved a bizarre fact pattern. A Honeywell employee, Randy Landin, became infatuated with a co-worker. The infatuation was not reciprocated, however, and Landin responded by murdering his co-worker. Landin was convicted of the lesser offense of manslaughter and sent to prison. After serving five years in prison, he was released. (An entirely separate question, beyond the scope of this analysis, is whether five years in prison is a sufficient penalty for taking another person’s life.)
After he was released from prison, he reapplied for a custodial position at Honeywell. Like your company, Honeywell concluded that he had discharged his debt to society, and rehired him. Like your firm, Honeywell took into consideration the fact that the employee, by virtue of the position he would occupy, would have relatively little contact with the public. Honeywell apparently concluded that his past conduct would not pose a risk to other Honeywell employees or members of the public.
Unfortunately, Honeywell was wrong. Not long after he was hired, Landin became interested in another Honeywell employee, a female employee who also worked on Honeywell’s custodial staff. As had happened previously, his amorous sentiments were not reciprocated. Tragically, his response to this second “rejection” was the same as his response to the first – he murdered the co-worker who had rejected him. The co-worker’s estate sued Honeywell on multiple theories, including negligent hiring, negligent retention and negligent supervision.
The Minnesota Court of Appeals rejected the decedent’s estate’s negligent hiring theory, a decision driven largely by a public policy analysis. As the appellate court pointed out, imposing liability on Honeywell under a negligent hiring theory would “essentially hold that ex-felons are inherently dangerous and that any harmful acts they commit against persons encountered through employment will automatically be foreseeable.” The court found that such a result would “offend our civilized concept that society must make a reasonable effort to rehabilitate those who have erred . . ..” Based on this reasoning, the appellate court concluded that “public policy” supports a “limitation on this [negligent hiring] cause of action.” (For reasons not directly relevant to your situation, the Court of Appeals did find that Honeywell had “negligently retained” the employee – he had engaged in other problematic behaviors since he had been rehired – and the case was sent back to the District Court on that theory.)
Applying that precedent to your situation suggests two points, neither of which (I admit) is directly responsive to your specific questions (which I will address below). First, it would appear that your company’s decision to hire this individual should not expose your company to a negligent hiring claim. As the Yunker court emphasized, if employers are precluded from ever hiring anyone with a felonious past, those individuals will be doomed to permanent unemployment. Second, however, you will need to monitor the situation closely. If the employee you hired engaged in any conduct that you found troubling, you will need to address that situation promptly. You do not want to allow a situation to remain unremedied, especially if the context implicated any of the issues relating to his prior conviction. Disregarding this potential problem could expose your company to considerable liability.
The fact pattern you presented, however, is more subtle. You did not suggest that the employee has engaged in any problematic conduct in the workplace. Rather, you simply have learned that the employee occasionally has been asked to baby-sit for a co-worker’s pre-teen daughter. The first question you asked is whether you have a “legal duty” to intervene. In my view, you do not. A company is not obligated to apprise its entire workforce of all of the dark secrets and past problems of which it is aware regarding all of its employees. Indeed, it would be an imprudent precedent to begin doing so for multiple reasons.
The next two inter-related questions you ask (what are the risks of intervention versus non-intervention) are tougher inquiries. As to the former, the risk of intervention would seemingly revolve around a potential defamation claim by the employee who had served time in prison. I will address defamation more thoroughly in other Blog postings, but the key point you need to understand here is that truth is a complete defense to a defamation claim. In short, to the extent you share any information with the employee who has asked the former felon to babysit, you need to be accurate. Do not embellish. Do not exaggerate. Stick to the facts and then stop. Taking this approach should eliminate any potential exposure on a defamation claim.
As to the latter (the risk of non-intervention), from a legal perspective, I see little risk to your firm. Even if your employee engaged in horrific conduct and sexually assaulted your other employee’s daughter, I do not believe that your company would risk legal exposure. (This assumes, of course, that you have not made affirmative representations to your employees regarding what a terrific babysitter this employee would make.)
I have suggested in a few of my other Blog postings, however, that the legal analysis often does not end the inquiry. I suggest that you consider this issue as a parent might consider it. In this context, the greatest risk of “non-intervention” is the risk that the pre-teen daughter might be assaulted. Although the likelihood of this possibility may be miniscule, the consequences if it did occur would be traumatic. Further, if you were asking someone to babysit for your daughter, I have little doubt that you would want to know whether the individual had previously served time in prison for a sex-related offense. When considering the issue in this context, I believe the desired course of conduct is clear – pertinent information should be shared with the employee who is having the ex-felon babysit for her daughter.
You may discover that the employee himself already has shared this information and has provided sufficient reassurance to his co-worker that she has no reticence about hiring him. You may discover that she was unaware of the pertinent facts but that she is willing to use him to provide this assistance despite his prior conduct. But, you also may discover that she was unaware of the employee’s background, is troubled by it, and wants to terminate the baby-sitting activities. At the present time, you do not know which of these scenarios might apply. Once you have shared the data (and done so with the request that it remain confidential), your employee will be able to make an informed decision regarding how she wishes to proceed. And I suspect you will sleep easier at nights if a subsequent problem ever does occur.
Company Liability for Employees’ Cell Phone Use While Driving, Quirky Question # 37
Quirky Question # 37:
Our company employs a number of salespeople who spend a significant part of their time driving between customer appointments. Our sales manager keeps track of their schedules and often calls them when he knows that they are driving between appointments, as this is a convenient time to check in with them. Do you see any problems with this practice?
Roy’s Analysis:
You inquired whether it’s advisable for your company’s sales manager to contact your field sales employees via cell phone when they are driving between customer appointments. It’s not. The practice is risky to your employees and to members of the public, inasmuch as it forces your employees to speak with your office on a cell phone while they are driving. Although the risks to your employees and the public should be sufficient for your company to alter its practices, if you need more convincing, you should understand that this practice exposes your company to potential legal liability and correspondingly significant financial risk.
There is increasing evidence as to how unsafe it is for individuals to drive while talking on cell phones. And there are increasing instances of employers being held liable when their employees get into accidents while talking on cell phones.
Studies show that using a cell phone while driving dramatically increases the risk of a traffic accident. For example, in a study by the Insurance Institute for Highway Safety in Perth, Australia (2005), the conclusion was that drivers who use cell phones are four times more likely to get into injury-causing traffic accidents than drivers who do not use cell phones while driving.
Similarly, a 2006 study by the University of Utah found that the impairments associated with using a cell phone while driving can be as profound as those associated with driving under the influence (.08). Even drivers using “hands-free” devices showed similar levels of “impairment” (Perth Study and University of Utah Study).
Not surprisingly, state legislatures are beginning to take action to address the problems associated with the pervasive use of cell phones by individuals driving vehicles. As of today, six states (California, Connecticut, New Jersey, New York, Utah and Washington) and the District of Columbia, and at least 10 cities (e.g., Chicago, Detroit, Dallas) have enacted bans or restrictions on cell phone use while driving. The Washington and New Jersey statutes also specifically ban text messaging while driving.
Because of the significant risks associated with the combination of driving and cell phone use, a number of companies are proactively seeking to eliminate this all-too-common practice. For example, UPS does not provide drivers with cell phones and forbids them from talking on their own cell phones while driving. Shell Oil Company not only directed its employees not to use cell phones while driving, but, in 2007, its General Counsel asked law firms working as outside counsel to Shell to not drive and talk on their cell phones while doing Shell business. Exxon Mobil (which has had some experience with an impaired driver, albeit of an oil tanker) prohibits employees from using cell phones while driving. Exxon Mobil’s policy dictates that phones contain a call-forward feature – a voicemail message advising callers that the Exxon worker is busy at the wheel.
These and other company policies may seemingly have been stimulated by prudence and responsibility. Or, they may have been influenced by a number of recent cases in which employers were held liable for accidents caused by their employees who were talking on cell phones while driving. Earlier this year, International Paper Company agreed to settle for $5.2 million a personal injury suit brought by a widowed mother of four who had her arm amputated after she was rear-ended by one of its employees who was allegedly talking on her company-provided cell phone while speeding on the interstate (77 in a 70 mph zone). Dyke Industries, a lumber wholesaler, suffered a jury verdict of $21 million after one of its salesmen hit and severely disabled an elderly woman while the salesman was talking on his cell phone when driving to a sales appointment. A lawyer hit and killed a 15-year-old girl when the lawyer was talking on her cell phone while driving home from a meeting one night. The lawyer, who initially thought she hit a deer, served a one-year jail term and paid $2 million. Her law firm settled for an undisclosed amount after initially being sued for $30 million.
As these sad (and costly) situations illustrate, it’s a terrible idea for your supervisor to call employees when he knows they are driving, especially since multiple alternative options are available. Your employees could call into the office to speak with the sales manager after completing one job but before departing for the second. Or, your employees could call into the office upon arrival at the second job but before commencing work. Yet another option would be to instruct your employees that they may not answer the phone while driving. Within a short period of time following receipt of the call, your employee could pull off the road into a parking lot and return the call from there. Whichever option is considered most desirable, your firm needs to enforce it. To the extent that employees violate your company’s policy regarding the use of cell phones while driving, they should be disciplined.
Promulgating an effective policy regarding cell phone use while driving should be relatively easy. Ideas to consider including in your policy are:
a) Banning all cell phone use by your employees while they are driving any company vehicle, driving their own vehicles on company business, or driving to or from customer appointments at the beginning of, during, or at the end of the workday;
b) Prohibiting the use of cell phones while driving for all business-related calls, whether before, during, or after business hours. (Of course, a well-crafted policy also should apply to personal calls made during the work-day while your employees are driving.);
c) Prohibiting the use of hands-free devices as well as hand-held devices;
d) Prohibiting your office personnel from contacting any of your employees via cell phone when they are known to be traveling from appointment to appointment, or from one customer location to another; and
e) Instructing your sales representatives that they are not to answer their cell phones at any time when they are driving. There may other simple rules that would be appropriate for your company to incorporate into its policies, depending on the nature of your firm’s business. Basically, you want to ensure that neither your employees nor members of the public are put at risk because of your company’s practices with regard to either company-issued cell phones or PDAs, or your employees’ personal cell phones or PDAs. Taking these simple precautions not only will benefit your employees and the public alike, these prudent actions also will reduce the risk of potential legal liability and substantial damages for any injuries caused by your employees’ using cell phones while driving.
Need for Search Warrant, Quirky Question # 36
The police recently requested a copy of his computer hard drive. Can we turn the hard drive over to the authorities even if they do not have a search warrant? Do we have to notify the employee that we are going to do so?
Courts continue to grapple with the issue of whether employees have expectations of privacy in their offices, including their computers, that generally would require investigative authorities to obtain a search warrant. This analysis can be affected by a company’s past practices (has the company allowed employees to use their company computers for personal use; has the company allowed employees to download their own music, photos, and programs onto the company computer; do the employees have responsibility for servicing their own computer programs themselves; does the company periodically review the data on the employees’ computers; are employees given their computers upon resignation or termination; are the employees allowed to purchase their computers upon resignation or termination; etc.). The answers to these and other inquiries may influence the calculus of whether an employee has a reasonable expectation of privacy in his or her company-issued computer equipment.
Another critical factor that bears on this analysis is what company policies have been promulgated regarding the employees’ computer use and access. If a company has clearly delineated policies stating that it owns all of the computer equipment provided for its employees’ use, and that it retains the right to take possession of and/or review employees’ computers and other electronic equipment, as well as the emails communicated via this equipment, or other data generated or stored on the equipment, these policies affect the employees’ expectations of privacy. Of course, there should not be a corporate disconnect between the policies on the company books and the company’s actual practices.
In early 2007, the question of police access to an employee’s computer, without the authorities first obtaining a search warrant, was addressed by the Ninth Circuit Court of Appeals. See, United States v. Ziegler, 474 F.3d 1184 (9th Cir.) (superceding opinion filed on 1/30/07).
Voluntary Leave Policy, Quirky Question # 35
Quirky Question # 35:
I am the HR Director for a large company with operations in Alaska. Our Alaska-based employees work on a rotating schedule of two weeks on / two weeks off. Many of these employees commute from the Outside (Lower 48) for their two-week rotations. During their rotation, these employees live in company provided housing and are transported to the work site via company provided transportation. For job safety reasons, our company has a zero-tolerance drug and alcohol policy. Employees who report to work with a detectable level of drugs or alcohol in their system are terminated.
Recently, one of our new mechanical engineers from the Outside showed up at the bus stop intoxicated. At his co-workers’ urging he wisely opted not to get on the bus and simply did not report to work. The next day, he advised his supervisor that he may have a problem with alcohol and that he would be seeking treatment when he returned home at the end of the week. He is now advising us that he cannot return to the work site for his next rotation due to his doctor’s advice.
This employee does not yet qualify for FMLA leave, but our drug and alcohol policy does encourage employees to seek assistance for drug or alcohol abuse and indicates that employees who come forward voluntarily will not be penalized. We obviously want to encourage employees to get help if they need it, and we are willing to let this employee forgo his next rotation, but how much leave (if any) are we required to give him? We are already short staffed as it is and his absence is making things even more difficult.
[Set forth below is our analysis of Quirky Question # 35. As this was a question submitted to the employment attorneys in our Anchorage, Alaska office, our colleagues there provided the analysis. The response below was furnished by Wendy E. Leukuma. Wendy is a 1999 graduate of Northern Michigan University and a 2002 graduate of William Mitchell College of Law. If you would like to communicate with her about the question and analysis below, or any other employment law issue, her direct line is 907.257.7826 and her email address is leukuma.wendy@dorsey.com. Wendy's resume is displayed at www.dorsey.com.]
Wendy’s Analysis:
Arguably, your fact pattern illustrates the maxim, “No good deed goes unpunished.” Your company appears to have a generous policy, designed to assist employees to obtain necessary treatment for drug or alcohol abuse. As you recognize, however, at times your policies may collide with your need to have a reliable workforce.
Since your employee does not yet qualify for Family and Medical Act (FMLA) leave, his entitlement to leave depends on your company’s policies and on whether he is entitled to a reasonable accommodation under the Americans With Disabilities Act (ADA) or Alaska’s non-discrimination laws.
With respect to your companies’ policies and procedures, at a minimum, the employee’s request for leave should be treated like any other non-FMLA request for leave. If you routinely permit employees to take several weeks’ vacation in a row without penalty, you should permit this employee to do the same for purposes of seeking treatment. In addition, the employee should be permitted to exhaust any available paid leave such as vacation, PTO, or sick leave while in treatment. Of course, you do not have to take his word for it. You should (for liability reasons alone) require him to provide proof that he is obtaining treatment and that he is making satisfactory progress.
Because your policy specifies that employees who voluntarily seek treatment will not be penalized, it is important that you not terminate this employee simply because he needs to take leave. Rather, any decision to terminate should be based on the hardship caused by granting such leave. Since your company is already short-staffed, you may be in a situation where you have several vacant mechanical engineer positions. If that is the case, you should certainly fill these positions before terminating this employee. Otherwise, you may have a hard time justifying his termination under your company’s drug and alcohol policy.
You also may wish to consider your past practices with respect to allowing other non-FMLA-qualifying employees time off for drug and alcohol treatment. What have you done in the past? How often? How much time have you allowed the other employees to take off? Were your company’s economic circumstances different in the past (e.g., not so short-staffed)? Exploring these inquiries should help you evaluate two different issues. First, as described below, gathering data in response to these questions will enable you to better assess the issue of whether your firm will be able to establish an undue hardship if the employee’s leave becomes prolonged. Second, it will be important for you to understand whether this employee will be able to make any argument, legitimate or otherwise, that he is experiencing differential treatment with respect to your company’s enforcement of this policy. For example, if you have had several Caucasian employees take leave under your drug and alcohol and this employee is a minority, he may be able to make an argument that he is experiencing race or ethnicity based differential treatment. Assuming that your examination of these issues does not flag any concerns for you, you still have to assess whether your employee has any rights under the ADA.
Regardless of your specific company policies, under the ADA, most employers with 15 or more employees are required to provide reasonable accommodation, including unpaid leave, to disabled employees who are able to perform the essential functions of their job with or without accommodation. Under Alaska law, Alaska employers with one or more employees are required to provide such accommodations. Accordingly, if this employee is a recovering alcoholic, he may be entitled to additional leave, so long as it does not create a hardship for your company. In the context of a drug or alcohol addiction, 28 days of leave for treatment is traditionally considered the normal amount of time required. Absent significant operational concerns, courts are sometimes reluctant to find a hardship where the employee is absent from work fora month or less. (In fact, as will be addressed in other Blog postings, courts increasingly have been granting protracted leaves as an accommodation to provide employees an opportunity to address physical or mental health issues that are precluding them from continued gainful employment.)
Here, given your employee’s rotating shift, it appears as though he will be absent from the workforce for a minimum of six weeks before his next rotation. In most cases, this amount of time should be sufficient for the employee to seek and obtain any treatment necessary. Additional requests for leave from this employee should be evaluated on a case by case basis to determine whether the individual is truly disabled within the meaning of the ADA and if so, whether your company can accommodate his request for leave without undue hardship. Under the ADA, you may interact with his medical provider to determine the answers to these questions. The information you obtain from your employee’s medical provider also may shed light on whether your company is likely to be able to work out a solution to this situation that fulfills the needs of your company and your employee alike.
Bogus Lawsuits, Quirky Question # 34
We continue to confront periodically lawsuits from former employees that are utterly frivolous. Some of the claims make you shake your head in disbelief. We’d like to file malicious prosecution lawsuits against the individuals who file these bogus claims. Are there any downsides to this approach? Could someone argue that the lawsuits we are contemplating are “retaliatory?”
First, the most typical corporate response is simply to defend the case and prevail. This can be costly but many companies simply attribute these expenses to the “cost of doing business.” Moreover, a convincing win, well publicized by the company, can communicate to other employees that the company will not capitulate and settle when confronted with dubious lawsuits. This outcome has value and suggests that in the long-term, settling insubstantial cases for even modest amounts can be counter-productive. For example, a number of years ago, contrary to my advice, one of my clients opted to resolve all employment claims brought against it, justifying the decisions on the ground that defending the lawsuits would cost more than the settlement amounts. When the number of separate lawsuits climbed into the 50s, and certain plaintiffs acknowledged the widespread employee perception was, “Sue the company, get a car,” the company’s willingness to settle evaporated. We obtained a series of summary judgment wins and quickly saw both the amount of the settlement demands and the frequency of claims plummet. The “free car” days were over and the remaining employees knew it.
Personally, I am not a fan of the second option for several reasons. First, until the plaintiff’s lawsuit is concluded, your abuse of process claim is not really ripe. Second, I don’t like the atmospherics of a counter-claim in the original lawsuit. I’d rather have the fact-finder focusing exclusively on the issue of whether the underlying claims are legitimate. Third, I think there is a greater risk of a compromise dismissal by the trial court if the counterclaim is part of the initial lawsuit. This is true both at the motion stage and when the parties are working through any settlement, even if the resolution does not require the defendant to provide any compensation to the plaintiff. In that context, it simply is too easy for the judge to pressure the defendant to give up the counterclaim – indeed, that offer can become the judge-advocated rationale to the plaintiff for why he/she should drop the claim without compensation. Fourth, overworked courts want to see litigation end; this means the entire case, not just the plaintiff’s claims.
The alternative, a post-victory abuse of process lawsuit, is a rarely pursued, but very intriguing idea. Although you may subsequently encounter an argument that this is a form of “retaliation,” in my opinion this contention lacks merit. Your company has a right to seek redress in the courts in response to improperly asserted litigation. The countervailing consideration, that undoubtedly will be argued by the plaintiff, is that allowing a post-dismissal or post-trial abuse of process claim will “chill” the exercise of statutorily protected rights under federal or state anti-discrimination statutes and adversely affect the important public policies those statutes were designed to advance. This argument may initially appear reasonable but I don’t believe it withstands scrutiny. How does allowing an entirely bogus lawsuit, which often will consume significant administrative agency time (whether at the EEOC or state counterpart agencies) and significant judicial resources advance the interests of the anti-discrimination statutes? One could make an equally plausible argument that this litigation not only wastes scarce resources but also diminishes the goals of the anti-discrimination statutes, because frivolous lawsuits generally undermine public perceptions of legitimate claims and the statutory schemes on which they are based.
I am aware of one recent case, Greer-Burger v. Temesi, No. 2006-1616 (Dec. 12, 2007), that implicated the issues raised by your inquiry. In the Temesi case, the Ohio Supreme Court held that it was not necessarily retaliatory for a defendant to pursue an abuse of process lawsuit against an employee who had unsuccessfully prosecuted a discrimination lawsuit. In the case decided by the Ohio Supreme Court, the original plaintiff (Tammy Greer-Burger) had sued Laszio Temesi and her employer for sexual harassment. The case went to trial and she lost. Temesi then sued her for abuse of process, malicious prosecution and intentional infliction of emotional distress.
In response to Temesi’s lawsuit, Greer-Burger filed a new Charge of Discrimination, alleging retaliation, with the Ohio Civil Rights Commission (OCRC). An Administrative Law Judge (ALJ) concluded that Temesi’s lawsuit was retaliatory, and recommended that the OCRC block the litigation and award Greer-Burger $16,000 in attorneys’ fees. The OCRC followed the ALJ’s recommendation. Temesi then appealed to the trial court; he lost again, with the trial court affirming the OCRC’s conclusion. Temesi did not give up, appealing the case to the Ohio Court of Appeals. There, he lost for the fourth time. Temesi pursued the case to the Ohio Supreme Court, where he finally was vindicated.
The Ohio high court repudiated the notion that any claim brought against a person who previously had pursued a discrimination claim was retaliatory. The court stated, “we hold that an employer is not barred from filing a well-grounded, objectively based action against an employee who has engaged in a protected activity.” The court further rejected the notion that Temesi’s claim for punitive damages somehow proved retaliation. “Although some may argue that allowing an employer to seek punitive damages will have a chilling effect on employee lawsuits, a blanket prohibition on employer punitive damages would open the door to truly frivolous cases.”
The Ohio Supreme Court went on to observe that unless the abuse of process lawsuit proves to be a “sham,” there is a Constitutional right to seek redress from the government. Thus, unless Temesi’s lawsuit was “objectively baseless,” it should not be barred. The procedure adopted by the Ohio court was to have the ALJ evaluate the legitimacy of Temesi’s lawsuit under the standards it had articulated.
The divided Ohio court recognized that it was balancing competing interests of employees and employers. While not wanting to chill discrimination claims, the court was unwilling to preclude employers in all instances from seeking judicial redress in response to a frivolous lawsuit. This analysis applied even to a case that went to verdict, as it should. As you may know, the summary judgment standard is often an easy standard for plaintiffs to satisfy, even when their claims are razor thin. As the Ohio court implicitly recognized, surviving summary judgment should not be the measure by which the abuse of process theory is assessed.
Bottom line: assert your retaliation claims but make judicious decisions regarding when you elect to do so. Be prepared for the the types of arguments advanced by Greer-Burger, as described above. From my perspective, it would be very interesting to see the law develop further in this arena.
Follow
