Do you know? Ohio has criminal penalties for unauthorized computer use or access

Ohio has criminal statutes that cover employees’ unauthorized use or access of their employers’ computers. Ohio Revised Code 2913.04 criminalizes, as a felony, the unauthorized use of property and the unauthorized access to a computer:

(A) No person shall knowingly use or operate the property of another without the consent of the owner or person authorized to give consent.

(B) No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service or other person authorized to give consent.

State v. Wolf (Ohio Ct. App. 4/28/09) [PDF] illustrates how these statutes operate.

Richard Lee Wolf worked at the Shelby, Ohio, Wastewater Treatment Plant. When a supervisor was cleaning files off an old computer, he came across a nude photo of Wolf. During the subsequent investigation, Wolf admitted that he had visited a website called “Adult Friend Finder” during work hours to meet women, some of whom asked for a nude picture. The city then conducted a forensic examination of the computer’s hard drive. and found 703 pornographic photos. It also found several sexually explicit emails, such as the following, in which Wolf appears to have been soliciting services from a dominatrix named Madam Patrice:

First off, thank you for taking the time to remember me. I have yet to be at the mercy of a true dom mistress. You are incredibly seductive, and I would love for you to be the first one to ‘break me in’. We’re talking ‘light stuff’ here, OK! Also, I have never been involved in any monetary transactions or arrangements….so this is all new to me. Obviously I would be with you for at least an hour, but I would prefer to be with you for at (sic) 2 hrs, contingent on your discount. Is it possible to spend the last half hour or so being your lover? Whatever is possible, please let me know. I look forward to hearing from you again. Have a great weekend. Rick.

When the city confronted Wolf with the mass of photos and emails, Wolf admitted that he had spent over 100 hours of work time on the internet for personal business. As a result of the investigation, Wolf was not only fired, but also successfully prosecuted under 2913.04. The court found that the convictions were warranted because the city had not authorized or consented to Wolf’s use of his work computer to upload nude photos or himself, to access pornographic websites, or to solicit sex for money.

Only extreme case will justify an employer filing criminal charges against an employee for misuse of work computers. Nevertheless, the Wolf case illustrates the importance of periodic monitoring how employees use workplace technology.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Court adopts no-harm, no-foul approach to employer misstatements about FMLA coverage

By definition, the FMLA only applies to those businesses that employ 50 or more employees within a 75-mile radius. A smaller employer, however, can render itself covered by the FMLA by making certain representations about FMLA coverage to its employees. For example, see Don't estop yourself into coverage.

In Dobrowski v. Jay Dee Contractors (6th Cir. 7/8/09) [PDF], the 6th Circuit adopts a common sense, no-harm/no-foul approach to coverage estoppel under the FMLA. Even though Jay Dee had less than 50 employees and was not covered by the FMLA, when Daniel Dobrowski needed time off for surgery Jay Dee’s president provided him a form entitled, “Application for Leave of Absence under the FMLA.” Prior his leave, the corporate president also delivered to Dobrowski a letter memorializing the approval of his leave, indicating that “[p]ursuant to the Family and Medical Leave Act, Jay Dee Contractors, Inc. will leave [Dobrowski’s] position open for at least twelve (12) weeks from October 18, 2004,” and enclosing a Department of Labor publication certifying his FMLA leave. When Jay Dee terminated Dobrowski at the end of his leave, he filed suit under the FMLA.

The 6th Circuit affirmed the district court’s dismissal of the FMLA claim. The court recognized that even though Jay Dee was too small to be covered by the FMLA, it could estop itself into coverage if Dobrowski could show (1) a definite misrepresentation as to a material fact, (2) a reasonable reliance on the misrepresentation, and (3) a resulting detriment to the party reasonably relying on the misrepresentation. The court found Dobrowski’s FMLA claim lacking on the 2nd element – reasonable reliance:

There is no evidence in the record to show that he “change[d] his position” in reliance on the belief that his leave would be FMLA-protected…. Had he relied on the erroneous representations, one would expect Dobrowski to be able to point to some action or statement that indicated that his decision to have the surgery was contingent on his understanding of his FMLA status; or perhaps evidence that raises an inference of such contingency – for example, a record that he made an inquiry as to his rights, asked for written confirmation of his leave arrangement, or changed his behavior after being told he was eligible….

If anything, the record shows that Dobrowski had already decided on and scheduled the surgery by the time he was informed of his eligibility. There is no evidence of a discussion of the FMLA eligibility prior to the application for leave filed with Jay Dee on September 27 – about three weeks prior to his October 15 surgery, and well after he informed the company of his planned absence.

The court indicated that its result might have been different if, for example, Dobrowski had “remained on leave beyond his FMLA period after receiving written assurance from his employer that his extended leave would be covered.” But, in the court’s correct view, “the question is not whether Dobrowski acted in conformity with the FMLA … but whether he changed his behavior in reliance on the Act.”

This case gives some solace to small businesses that FMLA coverage will not be granted in all cases in which the status of such coverage is misrepresented. Employers should not, however, take Dobrowski as carte blanche to make such misrepresentations. Employers still need to be mindful of the coverage thresholds for statutes to ensure that they are making informed decisions about the benefits and other terms and conditions offered to employees. 

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #86

Welcome to this Michael Jackson-free edition of What I’m Reading This Week.

As an update to my post yesterday on racism at The Valley Swim Club, I recommend two posts by a high school classmate of mine, Adam Bonin, at the Daily Kos, whose done an excellent job covering this story: Valley Swim Club: Day Two, and The Valley Club Is Being Investigated.

If an employee uses her company-issued computer to exchange emails with her attorney before she sues you for discrimination, are you entitled to access and review those emails? According to the Workplace Privacy Counsel, per one New Jersey appellate court the answer is no: “[A]ccording to the court, an employer cannot read an employee’s personal e-mail, even when the employer has a policy stating that the employee has no reasonable expectation of privacy, except when the content of the e-mail needs to be known to determine whether the employee violated company policy or acted unlawfully.”

Jay Shepherd’s Gruntled Employees has two excellent posts from the last couple of weeks: The wrong question, which discusses what to consider when an employee asks for a special accommodation, and Sugarcoated terminations, which talks about what not to say when terminating an employee.

Michael Fox’s Jottings By An Employer’s Lawyer has some interesting information on average UK jury verdicts in employment cases.

Molly DiBianca at the Delaware Employment Law Blog lists 3 reasons why employers don’t have a social networking policy. Kris Dunn, The HR Capitalist, shares his thoughts on the same topic. If you are looking to implement one, take a look at my 7 consideration for social networking policies, and then call or email me.

The FMLA Blog reports on a case out of Southern Ohio in which the court found an employer acted unreasonably by only allowing an employee three days to submit a doctor’s note certifying the need for intermittent leave.

Dennis Westlind at World of Work discusses the FOREWARN Act, which would expand the scope of the WARN Act to cover smaller employers.

In what is maybe the least surprising story of the fortnight, LaborPains.org reports that it only took newly-minted Senator Al Franken 6 hours to sponsor the EFCA, his first piece of legislation. Meanwhile, The Chamber Post makes the case for why we are better without unions at all.

Darcy Dees at the Compensation Cafe observes that employees will often prefer to be classified as exempt and not receive overtime because they perceive it to be an elevation in status within the organization.

The Warren & Hays Blog comments on the dangers of workplace sexual stereotyping.

David Clark at the EBG Trade Secrets and Noncompete Blog discusses a New York decision refusing to enforce a noncompete agreement against an ex-employee because he had intentionally signed the contract in the wrong place.

The Washington Labor & Employment Wire reports on efforts on Capitol Hill to tie the minimum wage to the federal poverty threshold. Just what American businesses need, a dramatically higher minimum wage.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Sadly, racism is alive and well

I grew up in Northeast Philadelphia. Not more than a mile from my house, just across the border in Huntingdon Valley, sits the Valley Swim Club. It was not so quietly known that families from my neighborhood should not bother trying to join, since the club was renowned for its anti-Semitism. Today’s Philadelphia Daily News confirms that the problems that existed at this club decades ago lives on today.

The newspaper reports that a Philadelphia day camp paid the Valley Swim Club $1,950 for its mostly black and Hispanic campers to use its pool for a week. After several of the club’s white members made disparaging comments about the campers, the club rescinded the contract and refunded the fee. While the club’s president claims that race had nothing to do with the decision to break the contract, he has also publicly stated that the club “underestimated the impact” the campers would have on the club, that they “fundamentally changed the atmosphere,” and that “there was concern that a lot of kids would change the complexion” of the club.

Philly’s Fox 29 provides more details, including interviews with children who overheard moms at the club saying, “What are all these black kids doing here? They might do something to my child.”

This non-employment story serves as a sad reminder to everyone that racism lives on, although usually not as openly and obviously as what appears to be practiced at the Valley Swim Club. Even in 2009, businesses need to remain vigilant in combating discrimination

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Announcing KJK’s Proprietary HR and Employment Law Audit

I’ve written in the past about the importance of routine, proactive audits of employment policies and practices:

• Use a wage and hour audit to proactively head off claims.
• Penny-wise, pound-foolish employment practices.
• Department of Labor to step up enforcement; employers should step up self-audits.

An article I found on Business Management Daily further underscores this point:

The economy is a shambles, and employers are doing everything they can to stay in business. That includes terminations, salary and wage cuts and temporary furloughs. Nearly every one of those moves carries litigation risk. With little to lose, more and more employees are willing to stake bias claims, hoping to score a big settlement. Their allies are attorneys who will look for any reason to sue. Need convincing? The dramatic increase in EEOC complaints rose 15.2% from 2007 to 2008, illustrating the risk employers take with every layoff decision.

Have your company’s personnel policies and practices had a checkup lately? A comprehensive audit is one of the easiest ways to spot problems.

The article then lists 17 different areas that employers should audit to ensure legal compliance.

While this list is a good start, it is nowhere near complete. I’ve developed a proprietary 200-point audit of HR and employment policies and practices. If you are interested in discovering which areas of your business are out of compliance and open to legal risk, I am willing to conduct this preliminary audit without charge. Please contact me for the details.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Is LinkedIn a risk for employers?

One of the more interesting features of LinkedIn is the ability to recommend your connections. In fact, LinkedIn will prod you to recommend others to further complete your profile. For example, my LinkedIn profile is 90% complete, and it tells me I can get to 95% if I recommend another person. Most successful professionals share two personality traits that will cause them to strive for that 100% goal – overachieving and type-A personalities.

In today’s National Law Journal, however, Tresa Baldas makes an excellent point about the legal risks posed by LinkedIn recommendations. Let’s say, for example, a manager provides one of his subordinates a glowing LinkedIn recommendation. If that employee is later fired, the odds are pretty high that the employee will try to use that recommendation as evidence of pretext in a later discrimination suit.

Social media provides a gold mine of information to use in employment lawsuits. Employees’ Facebook pages, YouTube videos, and blogs are all fertile ground for discovering useful information to use against an employee. If employers are going to swim in these waters, they need to be equally mindful that what they write about an employee can also be used against the employer. When drafting a social media policy, consider these risks and decide whether an outright ban on LinkedIn recommendations is best for your organization.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Perfect attendance bonuses and the FMLA

Before the recent FMLA regulatory amendments took effect, an employer could not  deny a perfect attendance bonus to an employee whose only attendance blemishes were the result of FMLA-leave. As of Jan. 16, 2009, however, employees on FMLA-leave could lawfully be denied a perfect attendance bonus:

[I]f a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.

In other words, as long as other employees taking similar time off are also not eligible for the same bonus, an employer can deny a perfect attendance bonus without fear of FMLA liability. The Department of Labor gives the example of an who uses paid vacation leave for a non-FMLA purpose. If an employer still provides a perfect attendance bonus to that employee, then it would be unlawful to deny the same bonus to an employee who used paid vacation leave for an FMLA-protected purpose.

While employers are now within their rights to deny perfect attendance bonuses to employees who take FMLA leave, the bigger question is whether an employer would want to withhold such a bonus. What message does that send to your employees? We value your dedication to getting to work everyday and on-time, but only if an unforeseen medical condition does not get in the way? Or is it better to pay out the bonus, even to those employees who have FMLA absences?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.