Category Archives: Workplace Torts

Workplace Discrimination Laws Broadened By The Genetic Information Nondiscrimination Act (GINA)

Posted on by

Employees will soon gain protection against employers that utilize genetic testing or consider genetic background in making hiring, firing, promotion decisions. The Genetic Information Nondiscrimination Act (“GINA”) passed by Congress in March 2008 becomes effective law in the next coming weeks as this New York Times story details:
Law Seeks to Ban Misuse of Genetic Testing. On November 21, 2009, the Genetic Information Nondiscrimination Act takes effect for all employers with 15 or more employees and on December 7, 2009, the Act takes effect for insurers.

GINA forbids certain discrimination on the basis of genetic information and the collecting and sharing of certain genetic information. GINA only allows the collection of genetic information in a few limited circumstances:

(1) If the information is necessary for a certification requirement under the Family and Medical Leave Act or a state leave statute.
(2) If the information is used to monitor the effects of hazardous workplace exposure; or
(3) If the employer conducts DNA analysis as a forensic laboratory.

As science uncovers more and more genetic predispositions for disease, the importance of protecting employees from discrimination on the basis of their genes increases. Without GINA, employers would have a strong incentive to discriminate against talented employees whose genetic background threaten to drive up their health insurance premiums. Senator Ted Kennedy heralded the Genetic Information Nondiscrimination Act as “the first major civil rights bill of the new century.” Without GINA, as genetic screening became more common place, employees with “bad genes” might have found themselves unemployable.

GINA forbids discrimination not only on the basis of an employee or prospective employee’s genetic information, but also discrimination based upon genetic information of family members. A “family member” includes an individual’s spouse, dependent child and certain other relatives.

Employees should know that, unlike HIPAA and some other health laws that do not allow an employee to sue for violations, the Genetic Information Nondiscrimination Act confers a private cause of action on certain victims of genetic discrimination. Section 207 of the Genetic Information Nondiscrimination Act gives a cause of action to employees and prospective employees who are discriminated against on the basis of their genetic information or whose genetic information is improperly collected or shared.

GINA enables employees to recover lost wages, costs, attorney’s fees and, in some instances, punitive damages. The punitive damages provisions have ceilings. For example, if the employer has more than 500 employees, an employee may recover up to $300,000 in punitive damages. There is also a retaliation provision to GINA that gives a cause of action to any employee who opposes a policy or procedure that violates GINA.

Employees Beware: Computer Fraud & Abuse Act May Restrict Ability To Retain Documents

Posted on by

Employees need to be especially cautious in retaining documents that may be considered the property of the employer. A law Congress passed to deter computer hackers is now being wielded by corporations in litigation against their former employees. The broad scope of this law is now on display in federal court here in Massachusetts.

The Computer Fraud and Abuse Act (“CFAA”) is a federal law that establishes civil liability for anyone who:

“[k]nowingly and with the intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud or obtains anything of value.

18 USC Section 1030 (a)(4).

Sounds like a law designed to punish computer hackers, right? Well, like the civil RICO act, it’s another broad federal statute that is being put to use in different contexts by clever lawyers. In CFAA’s broad contours, some employment defense lawyers see a weapon for use against former employees who wish to sue their former employer for civil rights violations or other workplace torts.

As the Third Circuit Court of Appeals has noted: “Employers…are increasingly taking advantage of the CFAA’s civil remedies to sue former employees and their new companies who seek a competitive edge through wrongful use of information from the former employer’s computer system.” P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal Superstore, LLC, 428 F.3d 504, 510 (3rd Cir. 2005).

Now a CFAA claim against a former employee is being litigated in New England’s own First Circuit. In a recent opinion in federal district court in Massachusetts, Judge Nathaniel M. Gorton denied a Motion to Dismiss filed by Thomas Pullen after his former employer, Guest-Tek Interactive Entertainment, Inc., sued Pullen for (among other things) allegedly downloading corporate files to a personal USB device. Pullen, as Guest-Tek’s former North American Vice President of Sales, had virtually unrestricted access to data on Guest-Tek’s computers. However, Judge Gorton found that, at least at this early stage, the lawsuit against Pullen should not be dismissed because Pullen’s use of Guest-Tek’s computers might have been “without authorization” or in excess of his “authorized access,” notwithstanding the fact that, as a high-ranking executive, Pullen was permitted access to all of the files at issue in the case.

Although the allegations in the Pullen case are egregious — Guest-Tek alleges that Pullen took the files in order to share them with his new employer and help the new employer gain a competitive advantage over Guest-Tek — employees should take heed. If you are a victim of workplace discrimination or sexual harassment and you wish to take home with you computer files that support your claims, you may expose yourself to a counterclaim by your employer under CFAA for doing so.

Workplace Tort Highlighted: Employee Suffers Waterboarding Incident

Posted on by

Preventative measures pay dividends. Prosper Inc. of Provo, Utah could certainly use some helpful tips from its employment counsel. In a story that seems more fiction than news, the company is accused of, among other things, waterboarding an employee as part of a “team-building exercise.”

Supervisor, Joshua Christopherson, was not pleased with his sales team, whose numbers were evidently not up to par. Christopherson brought his employees outside, told them they would do an exercise, and asked for a volunteer. Chad Hudgens unsuspectingly raised his hand. Christopherson instructed Hudgens to lie down on the hill on which they stood. Chistopherson then poured water from a gallon-sized container over Hudgens’ nose and mouth.

From Hudgen’s perspective, the experience was anything but pleasant:

So they held me down and the next thing I know, Josh has a gallon jug of water and he’s pouring it on my face. I can’t scream because the water’s going down my throat. And halfway through he stopped for a second. I tried to mumble the words, “Stop, knock it off.” I tried to get that out and he continued to pour. I’m not getting any air. Toward the end, I’m starting to black out. I’m getting very dizzy, light-headed. The sensation that’s going through my head is, “I’m going to drown.”

According to Prosper, Christopherson told executives that he was inspired by reading about the Greek philosopher Socrates, who is believed to have once submerged a student’s head under water and telling him that he must desire to learn as much as he wanted air. The Company’s General Counsel, George Brunt, did not deny the fact that Hudgens was essentially waterboarded. Amazingly, Brunt boldly commented: “I don’t know if this would even be an issue if it weren’t for Guantanamo Bay.” Company President, David Ellis, attempted to downplay the waterboarding incident as well: “How many times did the CIA even do waterboarding? Three times?”

To read more, check out the Washington Post’s article entitled, Team-Building or Torture? Court Will Decide.