Legal Report October 2010

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U.S. JUDICIAL DECISIONS

DEFAMATION. A woman may pursue a lawsuit against her employer after a company executive falsely accused her of illegally pulling a fire alarm. According to a federal court, the woman may pursue her allegations of defamation, invasion of privacy, negligent infliction of emotional distress, and false imprisonment.

Sheila Ciemniecki had been employed as a law librarian at the Marlton, New Jersey, office of Parker McCay for nine years when she received a smaller than normal raise. She felt that the raise was inadequate. After complaining to human resources, Ciemniecki was told that she would no longer be able to work flexible hours. She soon began to have problems with her supervisor. The supervisor reported Ciemniecki for working improper hours and docked her pay for taking a supposedly unauthorized business lunch.

Ciemniecki argued with her supervisor over these issues. The supervisor refused to talk to Ciemniecki again.

On June 2, 2009, someone activated the fire alarm at the Parker McCay offices. The office was full that day and several meetings with outside clients were ongoing. Ciemniecki had just finished speaking to an attorney when she heard the alarm. She returned to her desk, retrieved her purse, and exited the building.

The next day, Ray DiSanto, the company’s chief financial officer, summoned Ciemniecki to a conference room. Ciemniecki was met by the human resources director and two local police officers. One of the officers asked Ciemniecki if she pulled the fire alarm. Ciemniecki said she did not. Ciemniecki was told that there was video surveillance of her pulling the alarm. Ciemniecki asked to review the video but was told that she could not. The officers read Ciemniecki her rights, handcuffed her, and placed her under arrest for raising a false public alarm.

Ciemniecki asked DiSanto if she could have her job back once she was exonerated. DiSanto said that he had seen the video and that there was no doubt that Ciemniecki was guilty. Ciemniecki was then led out of her office in front of her coworkers in handcuffs.

After undergoing standard booking procedures, Ciemniecki was charged and then released from jail. She obtained a copy of the police report and found that DiSanto contacted the police the day after the false alarm to say that he had video footage of a woman pulling the false alarm. The report stated that a police officer then viewed the video and saw Ciemniecki pull the alarm.

In July 2009, the Burlington County (New Jersey) Prosecutor’s Office sent Ciemniecki a letter stating that the charges against her were being dropped. The prosecutor noted that the review of the video made it clear that the “dismissal of all charges is the appropriate course of action.”

Ciemniecki sued her employers for, among other things, defamation, invasion of privacy, negligent infliction of emotional distress, and false imprisonment. Parker McCay filed a motion to dismiss the complaints, claiming that the statements made about Ciemniecki were not defamatory and that the company’s actions were not conducted with malice.

The U.S. District Court for the District of New Jersey rejected the company’s motion, allowing Ciemniecki to pursue her case. The court gave a point-by-point refutation of the company’s claims.

On the defamation complaint, for example, the court rebutted the company’s request that the defamation claim be dismissed. The company’s rationale was that Ciemniecki did not state which precise words were defamatory. In the written opinion of the case, the court stated that whatever the precise words, the content of the message could be considered defamatory.

“Despite their protestations to the contrary, the Parker McCay defendants are on notice of what Ms. Ciemniecki believes Mr. DiSanto said about her to the police (that she committed the crime of falsely pulling a fire alarm), and why she believes Mr. DiSanto bears fault for allegedly having made it (because Mr. DiSanto either lied to the police to frame Ms. Ciemniecki or purposefully ignored the videotape evidence exonerating her for a similar reason),” wrote the court. “Such allegations are quite…sufficient to state a defamation claim,” it added. (Ciemniecki v. Parker McCay, U.S. District Court for the District of New Jersey, No. 09-6450, 2010)

WORKPLACE SEARCHES. The employee of a federal correctional institution may pursue his Fourth Amendment claim against the facility after he was fired for refusing to submit to a search of his vehicle. The question of whether inmates could have accessed the car and potentially planted contraband cast doubt on the constitutionality of the search.

The Lincoln Correction Center (LCC) in Lincoln, Nebraska, conducts random, unannounced searches of employee vehicles to prevent contraband from entering the facility. The cars to be searched are chosen daily by selecting five random parking spaces from a diagram. The parking lot is located outside the facility. While most inmates are prevented from entering the lot, some inmates who are allowed to venture into the community do visit the parking area.

When hired, LCC employees are required to read and sign a handbook, which states that employee vehicles can be searched at any time and that refusal to allow a search can result in termination. On April 13, 2007, Brian L. True’s car was chosen to be searched. True refused to allow the search. True was told that he must appear before the disciplinary committee. At the disciplinary hearing, True said he would not comply with future searches if he returned to work. He was fired.

True sued the LCC, claiming that the search requirement violated his Fourth Amendment right to be free from unreasonable search and seizure, and that the fact that LCC did not search visitors’ cars violated his equal protection rights under the Fourteenth Amendment.

LCC requested summary judgment—a hearing based on the facts of a case without a trial. The U.S. District Court for the District of Nebraska granted the summary judgment. True appealed the decision.

The U.S. Court of Appeals for the Eighth Circuit found that True could not pursue his Fourteenth Amendment claim because the search of employee vehicles is related to legitimate security issues. Unlike visitors’ cars, employee vehicles are at the facility daily, making it easier for employees to smuggle in contraband.

However, the court overturned the summary judgment on the Fourth Amendment claim and asked the lower court to reconsider the issue. The court ruled that there was a legitimate question of whether inmates could access employee vehicles and plant contraband inside them. This dispute of fact, said the court, introduces a question of whether the search itself was reasonable. (True v. State of Nebraska, U.S. Court of Appeals for the Eighth Circuit, No. 09-1788, 2010)

U.S. CONGRESSIONAL LEGISLATION

PORT SECURITY. The Senate Commerce, Science, and Transportation Committee held a hearing to discuss port security initiatives and explore whether the SAFE Port Act of 2006 should be reauthorized in its previous form or should be altered to address additional security issues.

Committee Chairman Sen. John D. Rockefeller (D-WV) plans to introduce legislation that will reauthorize key provisions of the SAFE Port Act, he said. Specifically, the bill would reauthorize grants for port security, and it would address the need for better securing small vessels, hazardous cargo, and the global supply chain. Rockefeller indicated that he would consider issues raised during the hearing before finalizing the bill.

Among those testifying at the hearing was Alan Bersin, commissioner of U.S. Customs and Border Protection (CBP) in the Department of Homeland Security (DHS). He testified on his agency’s implementation of the SAFE Port Act through use of multilayered screening techniques to identify potentially dangerous cargo before it arrives in U.S. ports.

Bersin discussed the CBP’s security filing initiative, under which it obtains shipping and manifest information from vessels arriving from overseas. Under the initiative, ships must provide basic cargo information 24 hours prior to loading the ship, and they must provide a vessel stow plan—which includes information such as container contents, hazmat records, and port of discharge—48 hours after departure from a foreign port. Bersin also discussed the agency’s Container Security Initiative, under which CBP identifies and inspects high-risk cargo bound for the United States before it leaves a foreign port.

Additionally, Bersin told the committee that the Secure Freight Initiative (SFI), under which all containers from foreign ports must be scanned for nuclear and radiological materials before being loaded on U.S. bound ships, is unlikely to be in place by a legally mandated 2012 deadline. “Deploying SFI-type scanning equipment would cost about $8 million per lane for the more than 2,100 shipping lanes at more than 700 ports around the world that ship to the United States,” explained Bersin. “On top of these initial costs, operating costs would be very high. These include only DHS expenses, not the huge costs that would have to be borne by foreign governments or industry.”

DHS would have to seek extension on the 2012 deadline because it lacks the wherewithal to achieve the goals not only in terms of fiscal resources but also in terms of technology. The technologies needed to achieve the objective don’t yet exist, Bersin said. And logistical challenges include the need to redesign many ports to accommodate the scanning facilities.

Stephen L. Caldwell, director of homeland security and justice issues for the Government Accountability Office (GAO), testified that the SFI program is further hampered by equipment breakdowns, but he also questioned the feasibility of screening 100 percent of cargo. In 2009, the GAO recommended that DHS conduct a feasibility analysis to determine whether the program could meet its goals. The DHS agreed, according to the GAO, but it has not yet conducted such a study.

Admiral Robert J. Papp, commandant of the Coast Guard, spoke about his agency’s contribution to port security, which includes administering the vessel and facility security plans required under the Mari time Transportation Security Act of 2002 and enforcing the Transportation Workers Identification Credential program. Papp noted that “opportunity remains to strengthen partnerships, improve maritime domain awareness through…interagency cooperation, enhance public vigilance, and refine collaborative security regimes.”

Caldwell agreed with Papp’s assessment. Specifically, Caldwell noted that the Coast Guard has faced challenges in implementing tracking systems around ports. According to the GAO report, vessel tracking systems are unable to track small vessels, leaving ports vulnerable.

COMMUNICATIONS. A bill (S. 1749) that would prohibit the use of cell phones by all prisoners and would designate cell phones as contraband in prisons has been approved by the House of Representatives. A different version of the bill was previously passed by the Senate; the bill must now go into conference committee to reconcile the differences.

Another bill (S. 251) currently pending in the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security would allow corrections officials to petition the government to use wireless jamming devices in prisons. Currently, any interference with wireless services is illegal. In evaluating petitions, the bill would require that the government consider whether the jamming device would interfere with the work of local first responders or other public-safety or emergency personnel.

CRUISE SHIP SECURITY. A new law (P.L. 111-207) seeks to enhance security aboard cruise ships. It applies to cruise ships that embark or disembark at U.S. ports, are authorized to carry at least 250 passengers, and have sleeping facilities for each passenger.

The law requires that each stateroom on cruise ships be equipped with security latches and electronic keys that can provide entry dates and times. Ships are also required to install and maintain a video surveillance system and provide information from that surveillance to law enforcement upon request. Cruise ship owners are required to establish and enforce policies on crew-member access to passenger rooms.

The law requires that ships maintain rape kits and ensure that medical staff members be trained to administer such kits and treat assault victims. Designated crew must be trained to detect and preserve crime scene evidence.

Ship owners are required to track crimes reported on board and keep a log of those crimes. The log will be available to the FBI, the U.S. Coast Guard, and law enforcement investigating a reported crime. If a serious crime occurs on board, ship operators are required to report the incident to the nearest FBI field office immediately. The government is required to keep statistics on crime aboard cruise ships, which will be available via a dedicated Web site.

WHISTLEBLOWERS. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 contains various provisions that offer incentives and strengthen protections for whistleblowers.

Under the law, whistleblowers are directed to report fraud cases directly to the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC). For original information that results in more than $1 million in sanctions, the whistleblower can receive from 10 to 30 percent of the amount obtained by the SEC or CFTC. The award amount depends on how vital the information was in pursuing the case and the degree of assistance provided by the whistleblower. Awards will not be given to a whistleblower who was convicted of a crime related to the fraud he or she reported.

To be considered “original” information, the reporting must result from the whistleblower’s knowledge or analysis and not from media or government sources. The information must be unknown to the SEC or CFTC.

Under the law, whistleblowers who suffer retaliation from their employers for providing information to the government may sue in federal court. The law defines retaliation as discharge, demotion, suspension, harassment, or discrimination. Remedies include reinstatement, back pay, and court fees.

The Dodd-Frank law also amends whistleblower provisions in The Sarbanes-Oxley Act of 2002. Under the new law, the statute of limitations under Sarbanes-Oxley is doubled from 90 days to 180 days. Also, Dodd-Frank states that those suing under Sarbanes-Oxley have a right to a jury trial rather than pursuing their claims through the Occupational Safety and Health Administration.

STATE LEGISLATION

Louisiana

WEAPONS. A new law (formerly H.B. 1272) in Louisiana allows people to carry concealed weapons into churches, synagogues, and mosques if condoned by that house of worship. Before a person can carry a concealed weapon into a house of worship, the person must undergo an additional eight hours of tactical training that must be repeated each year. Concealed weapons are still prohibited in such facilities located on school property.

Connecticut

EMPLOYMENT. A new Connecticut law (formerly H.B. 5497) prohibits employers from firing, demoting, or threatening employees who are subpoenaed in a criminal case, participating in a criminal investigation, or have a restraining order issued on their behalf. Employers must also provide time off for victims of domestic violence who must obtain medical care, seek help from victims service, or relocate because of that violence.

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