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Legal Report April 2005


Workers’ compensation. The Supreme Court of Montana has ruled that an employer must pay workers’ compensation benefits for an intoxicated employer who fell from a balcony during a conference. Overturning a lower court’s ruling, the state supreme court held that the employee’s after-hours drinking did not negate his widow’s workers’ compensation claim.

Shawn Van Fleet was a deputy for the Phillips County Sheriff’s Department (Montana) when he and his supervisor, Mark Stolen, attended a conference for narcotics officers. At the conference, Van Fleet and Stolen visited a hospitality room hosted by the event sponsors.

Begun at about 6:00 p.m. on the first evening of the conference, the get-together was designed to bring attendees and vendors together to discuss law enforcement equipment. Because Van Fleet’s department was interested in purchasing new equipment, the gathering was of particular interest.

Food and alcohol were available free in the hospitality room, which closed shortly after midnight. At approximately 1:30 a.m., Van Fleet met up with four other attendees, one of whom had the keys to the hospitality room. The five went back to the hospitality room, where they played drinking games.

The group left the hospitality room sometime after 2:00 a.m. All five men proceeded to their rooms. Van Fleet was heading alone to his 5th-floor room along a 3rd-floor hallway, which was open to an atrium on one side, when he fell over the railing to the indoor courtyard on the main floor of the hotel. Van Fleet suffered injuries from which he later died. At the time of his fall, Van Fleet had a blood alcohol level of .203.

Van Fleet’s widow filed a workers’ compensation claim against the sheriff’s department. The Montana Workers’ Compensation Court (WCC) ruled that the department did not have to pay workers’ compensation because Van Fleet was outside the scope of his employment when his death occurred.

The WCC ruled that when Van Fleet returned to the hospitality room at 1:30 a.m., he deviated from his employment and was, therefore, not allowed to collect workers’ compensation. Van Fleet’s widow appealed the decision.

The Montana Supreme Court disagreed with the WCC ruling. The court ruled that because Van Fleet was at the conference and the hospitality room for the benefit of his employer, his attendance at the conference and the hospitality room was within the scope of his employment, and he remained in the scope of his employment through the time he fell.

The court also noted that the WCC’s argument that the return to the hospitality room was the point at which Van Fleet deviated from his employment is flawed. The court said that the preceding six hours of drinking at the hospitality room, during which the WCC agrees Van Fleet was within the scope of his employment, surely contributed to his fall. (Mindy Van Fleet v. Montana Association of Counties Workers’ Compensation Trust,  Montana Supreme Court, No. 04-206, 2004)

Drug testing. A federal court of appeals has ruled that an employee’s arrest for the possession of drug paraphernalia, an abuse of sick leave policy, and his refusal to submit to a drug test are sufficient grounds for requiring the employee to undergo ongoing, random drug screening.

Robert Relford was working as an electrician for the Fayette (Kentucky) County Government in 1997. One evening after work, Relford was arrested for possession of drug paraphernalia. Because he was incarcerated, Relford was unable to report to work that day. Instead of telling his supervisor the truth, Relford convinced a coworker to lie and tell the supervisor that Relford was sick. However, the supervisor found out that Relford had been incarcerated.

Relford was suspended for five days and was ordered to submit to a drug test. Relford refused, claiming that the county did not have reasonable suspicion—a requirement under its own policy—to test him for drugs. The county fired Relford.

Relford then brought a complaint before the county’s Civil Service Commission. The commission found that the county’s action was reasonable but that its policy had confused Relford. Therefore, the commission ordered that Relford be reinstated but required to consult with the county’s employee assistance program and submit to random drug testing.

Though he returned to work, Relford appealed the commission’s decision, arguing that because of the county’s duplicity, he should not be required to submit to random drug testing. While his appeal was pending, however, Relford was chosen to undergo a drug test. He tested positive for illegal narcotics and was fired.

Relford filed a lawsuit with the U.S. District Court for the Eastern District of Kentucky, claiming that he was unlawfully fired because of a drug test that violated his Fourth Amendment rights. The county applied for summary judgment—a hearing based on the facts of a case without a trial. The district court granted the summary judgment, finding that the county had reasonable suspicion to require a drug test. Relford appealed.

The U.S. Court of Appeals for the Sixth Circuit affirmed the lower court’s decision. The court ruled that while Relford’s arrest might not have met the test of reasonable suspicion, the arrest coupled with Relford’s dishonesty and attempt to cover up the incident did suggest the use of illegal drugs. The court ruled that the county was within its rights to subject Relford to random drug testing. (Robert Relford v. Lexington-Fayette Urban County Government, U.S. Court of Appeals for the Sixth Circuit, No. 03-5600, 2004)


Information security. On the authority of a 2000 law that amends the Atomic Energy Act of 1954, the Department of Energy (DOE) has issued regulations that will allow the department to impose civil penalties on contractors for breaches of information security. The final rule also gives DOE the power to withhold portions of a contractor’s fee for poor information-security performance.

The rule, which took effect at the end of February, will allow DOE to fine contractors up to $100,000 for each violation. The rule also allows DOE to insert a clause in its contracts that allows the agency to reduce the amount paid to a contractor if the contractor or an employee of the contractor violates rules relating to the safeguarding or security of sensitive information.


(R-TX) would establish a national cybersecurity response team that could analyze threat information and provide early warning of attacks on the cybersecurity infrastructure. The team would also be tasked with providing information and assistance to restore the infrastructure after an attack.

The bill also calls for coordination between government and the private sector to promote information sharing. This information sharing would be used to promote voluntary best practices, standards, and benchmarks in the private sector.

The bill has one cosponsor and has been referred to the House Homeland Security Committee.

Gangs. A bill (H.R. 283) introduced by Rep. Linda Sanchez (D-CA) would amend existing law to allow grant funds to be used specifically for bullying and gang prevention programs in schools and communities. Currently, the law allows grants for “violence prevention.” H.R. 283 would expand this language to read “violence, bullying, and gang prevention” programs.

The bill would also allow current juvenile accountability block grants to be used to establish and maintain programs that are designed to enhance school safety. These programs would include research-based bullying and gang prevention programs.

The bill has no cosponsors and has been referred to the House Education and Workforce Committee and the House Judiciary Committee.

Infant abduction. A bill (H.R. 252) introduced by Rep. Sheila Jackson-Lee (D-TX) would require all hospitals that are reimbursed under Medicare to follow security regulations set out by the government regarding infant abduction. The Health and Human Services Department (HHS) would be required to promulgate interim regulations within 12 months of the bill’s passage. The security procedures would be designed to reduce the likelihood of infant abduction and infant switching.

In developing the infant-abduction regulations, HHS would be required to consult with consumer groups, hospitals, and relevant regulatory agencies. Under the bill, the regulations would have to take into account the variations in size and location of hospitals and address each type of institution. Violations of the infant-abduction regulation would be punishable by civil fines of up to $50,000.

The regulations would also include procedures for identifying all infants so that it would be evident if a child was missing. To do this, medical facilities would be required to keep an identification record on each child.

This record could be the footprint, fingerprint, or photograph of the newborn; a written description of the infant; or an ID bracelet or anklet placed on the baby that could be matched to the mother. Violation of this regulation would be punishable by civil fines of up to $250,000 for an individual or $500,000 for an organization.

The bill has no cosponsors and has been referred to the House Ways and Means Committee, the House Judiciary Committee, and the House Energy and Commerce Committee.



Identity theft. Michigan Governor Jennifer M. Granholm has signed 11 new identity theft bills into law. The bills contain a number of provisions including making identity theft a felony in Michigan and prohibiting businesses or public utilities from denying service to identity theft victims. The bills also prohibit any company from requiring a Social Security number as a condition for doing business. The bills also prohibit photographing, recording, or electronically transmitting personal information taken without consent from credit, debit, and ATM cards.


Homeland security. A law (formerly S.B. 67) approved in Ohio makes it illegal for anyone to use an agricultural product or equipment to intimidate or coerce a civilian population, influence the policy of any government through intimidation or coercion, affect the conduct of any government, or interfere with agricultural processes to diminish consumer confidence or agricultural production.

Raising or providing funds for such a venture is a felony, as is concealing a plan or planning an escape after committing such an act.

This column should not be construed as legal or legislative advice.