Employment attorneys always tell their colleagues that the best practice area is undoubtedly employment law. HR professionals probably feel much the same way. Every personnel situation is different, it’s never boring, and just when you think you’ve seen it all, you hear about another wild day in the workplace. 2018 was no different, and the following real-life cases prove it.
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Georgia Man Gets a Kick in the Butt(dial)
James Stephens worked as the fiscal officer for the Georgia Subsequent Injury Trust Fund, a state agency. After work one day, his boss, Michael Coan, called him at home on his cell phone, and they talked about work for a while. Stephens hung up, put his cell phone in his pocket, and went on a rant to his wife for 12 minutes about Coan.
Unfortunately for Stephens, he had inadvertently “pocket-dialed” Coan, who heard the whole rant. When Stephens went to work in the morning, Coan gave him a choice—resign or be fired. Stephens resigned, and then he and his wife sued Coan under Georgia’s eavesdropping law and for invading their right to privacy. They claim that Coan had a legal obligation to hang up when he realized the call was inadvertent rather than listen to their private conversation.
Coan filed a request to dismiss the lawsuit, arguing he was immune from the suit because he was acting in his official capacity as a state supervisor and had a right to listen to the conversation of a subordinate employee who was discussing workplace matters. He went on to argue that the termination was appropriate because, given Stephens’ opinions and criticism of Coan’s job performance, he could no longer have an effective working relationship with Stephens or trust him as a subordinate.
The lower court agreed with Coan and dismissed the case. But Stephens appealed the decision, and the case is pending.
If this Is an Emergency, Immediately Dial 9-1-1
Brian Taylor, an employee at a salmon farm in Maine, was working a 12-hour overnight shift cleaning the facilities and equipment when he consumed either heroin or cocaine that he claims a coworker had given him. After taking the drugs, and while putting on rubber boots, he fell, striking his head on the floor. His coworkers found him unconscious, but rather than call 911, they placed him in a cold shower and called a manager. Unfortunately, the manager didn’t respond until four hours later. When the manager arrived at the site, he immediately called 911, but at that point, Taylor was nonresponsive, had irregular breathing, and required five doses of Narcan, an opioid overdose antidote, to revive him. Taylor ultimately suffered permanent injuries resulting in his confinement to a wheelchair.
Normally, workers’ compensation would cover workplace injuries. But in this case, the workers’ comp insurance carrier denied coverage because Taylor’s injuries occurred after he used illegal drugs during his shift.
So, Taylor sued his employer for failing to provide a reasonably safe workplace, arguing that the farm failed to properly train employees to render aid. In his lawsuit, he claims the drugs didn’t cause his permanent injuries—rather, it was his coworkers’ failure to arrange immediate treatment after he collapsed at work. If his coworkers had immediately called 911, he argues, he likely would have needed only a single dose of Narcan and probably wouldn’t have suffered any lasting injury. He also claims that employees at the farm routinely used, sold, and distributed drugs on-site while working, and the employer knew or should have known about the conduct but failed to enforce its own antidrug policies.
Not surprisingly, the employer responded to the lawsuit by pointing the finger right back at Taylor. It noted that his conduct violated the farm’s clear policy barring employees from using alcohol or drugs on the job or being under the influence while working. And it claims that his injuries were entirely or at least partially the result of his own misconduct. When he took drugs at work, the farm argues, he knew and assumed the risk of an overdose and the resulting injuries. We’ll be interested to see how this case turns out in 2019.
Leave Your Personal Life at Home (but not on a Work Computer)
Paul Iacovacci was a managing director of a New York finance firm. The company provided him with a desktop computer so he could work from his home in Connecticut rather than commute to the company’s New York City office. Although he did use the computer for work, he and his family used it for personal reasons as well, and he also plugged two personal hard drives into the computer.
The company fired Iacovacci, and he filed a wrongful termination lawsuit on October 17, 2016. That same night, his employer logged in remotely to the work computer in his home. Once in, it was able to access information on his personal hard drives as well as his personal e-mail, which he had left open on the screen. The company used that information to sue him for stealing confidential information.
But Iacovacci might (stress, might) have the last word. He countersued for invasion of privacy. He claims the company violated the Computer Fraud and Abuse Act (CFAA), the federal Wiretap Act, the Stored Communications Act (SCA), and the New York common laws of trespass and conversion (basically, theft) when it accessed and retrieved the data stored on the personal drives and in his personal e-mail.
The company doesn’t dispute that it remotely logged in and accessed the information on the personal drives and e-mail. But it says its conduct was justified because the computer was a company device, the handbook makes clear that the company can read, access, and monitor all data stored or processed on a company device, and it suspected Iacovacci of stealing company trade secrets. Moreover, the company argues, he authorized it to access the computer when he provided log-in credentials at the time he received the computer for the remote-access application.
This New York federal case is in the early stages, but we’ll be anxious to see which side prevails.
Former Employee Cleans up with Napkin
Former Alaska newspaper editor Tony Hopfinger sued the paper’s owner, Alice Rogoff, based on what he claimed was an enforceable contract for $1 million. In 2014, Rogoff handwrote the following on a napkin: “I agree to pay Tony $100K at the end of each calendar year (beginning ’14) for 10 years.” That’s it. The napkin didn’t say what the money was for or if the payments were wages or something else.
Rogoff paid Hopfinger one installment in 2015, but payments stopped after that. He sued, alleging that the napkin was a binding written contract committing her to pay him $1 million as a buyout for his share of the company. She argued that the napkin was an attempt to commit him to a 10-year employment term to work for the newspaper. She reasoned that she owed him nothing after he moved to Chicago and stopped working for the newspaper in 2015.
The case went to trial in November 2018, and the jury issued a verdict in favor of Hopfinger for $852,752. It found the napkin wasn’t technically a contract, but it was an enforceable promise, nonetheless. It also found that the promise was an agreement to buy out Hopfinger’s shares, not to commit him to 10 years of employment as Rogoff argued.
A Look Ahead
2019 will surely bring another batch of “stranger-than-fiction” cases in the employment law arena. And while these cases are interesting to read about, they also contain lessons for employers. It’s notable that two of the cases above deal with employee privacy issues. Given the ever-evolving law on that topic and “bring-your-own-device” issues, these cases will surely be at the top of the watch list in the next year. And, with more and more states passing medical and recreational marijuana laws, the interplay between workers’ comp, workplace safety laws, and workplace injuries in which drugs are a contributing factor is another hot topic to monitor.
Teresa Shulda is a Partner with Foulston Siefkin. She is also an Editor for the Kansas Employment Law Letter and can be reached at tshulda@foulston.com.