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Legal Report May 2011


SOCIAL MEDIA. The National Labor Relations Board (NLRB) has announced a settlement in the case of an employee who was fired for posting negative comments about her supervisor on Facebook.

In the case, American Medical Response of Connecticut, Inc., (AMR), fired an employee, Dawnmarie Souza, for posting a negative comment about her supervisor on Facebook. Souza was sent home after refusing her supervisor’s request to write up a complaint about her performance. Souza then requested union representation but it was not provided. After Souza went home, she posted derogatory and vulgar comments about her supervisor. Several AMR employees commented on the post, agreeing with Souza.

When AMR learned of the Facebook post, it fired Souza for being in violation of the company’s social media policy. AMR had a social media policy that barred employees from discussing the company in any way on Facebook or other social media sites.

The NLRB issued a complaint, arguing that employees may discuss the terms and conditions of their employment under the National Labor Relations Act. Thus, the NLRB claimed that because Souza was discussing her workplace with her coworkers, AMR had overstepped its bounds. The NLRB also noted that AMR’s social media policy was too broad and infringed upon employees’ protected right to discuss their employment.

In the settlement announcement, the NLRB noted that AMR agreed to change its “overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours, and working conditions with coworkers and others while not at work.” The company also agreed that they would not “discipline or discharge employees for engaging in such discussions.”

Additional details of the settlement, including payments to Souza, have not been made public.

The NLRB made it clear, however, that the right to criticize employers, management, or working conditions applies to both unionized and nonunionized employees, because such activities are considered protected activity under the federal law that gives employees the right to form unions.

FALSE ARREST. A federal appeals court has found that a police officer who relied on a faulty arrest warrant when detaining a suspect is not liable for that error.

Joseph Caceres was working as a painter on the George Washington Bridge, which spans the Hudson River connecting New York and New Jersey, when he parked his car near the bridge without first obtaining a permit. The car was impounded by the Port Authority of New York and New Jersey and held at a port authority police station in New Jersey.

When Caceres arrived at the station to pick up his car, the police ran a routine computer search of his name. The search turned up a New York State Identification (NYSID) number for Caceres. A NYSID is a designation number assigned to each person arrested by the New York criminal justice service. The search also linked Caceres to a warrant issued to a “John Doe.”

The port authority detained Caceres for two days until the station supervisor, Roenzo Sangiorgi, determined that the warrant was for someone else, a person who was wrongly issued the same NYSID number as Caceres.

Caceres sued the port authority and Sangiorgi for false arrest. A jury found in favor of Caceres and ordered the port authority to pay $10,000 in restitution. The port authority and Sangiorgi appealed the decision.

The U.S. District Court for the Southern District of New York upheld the decision against the port authority and the monetary award. However, the district court found that Sangiorgi was protected by qualified immunity—a legal theory that protects government workers from liability unless a victim’s constitutional rights are violated. Caceres once again appealed the decision regarding Sangiorgi. The port authority cross-appealed, arguing that if its officer was not liable, the port authority could not be liable.

Caceres contended that Sangiorgi made a mistake in assuming that the NYSID and the warrant were valid, thus violating Caceres’s constitutional right to due process and was, therefore, not covered by qualified immunity. Caceres argued that the physical description on the warrant did not match his physical characteristics. Because of this discrepancy, according to Caceres, Sangiorgi should have known the warrant was assigned to the wrong person.

The U.S. Court of Appeals for the Second Circuit disagreed with Caceres, finding that Sangiorgi’s actions were reasonable. The hair color on the warrant matched Caceres and the eye color was very close—Caceres has black eyes while the warrant described brown eyes. The height discrepancy was two inches, the weight within 20 pounds, and the age difference was five years. All of these were within the bounds of subjective observance, determined the court.

Further, the court found that the true cause of the confusion—that two people were issued the same NYSID—was so rare that those testifying in the trial thought such a mix-up was impossible. Therefore, the court determined that a reasonable officer would have taken the NYSID number as fact. In the written opinion of the case, the court noted that “a reasonable officer could have concluded that the ‘warrant hit’ conferred a probable cause notwithstanding an incompatible physical description, reasoning that a false hit from the historically reliable recordkeeping system is at least as rare as an error in the physical description fields.”

The court overturned the decision against the port authority, finding that the port authority could not be held liable for the conduct of an employee who has successfully established immunity. (Caceres v. Port Authority of New York and New Jersey, U.S. Court of Appeals for the Second Circuit, No. 09-3064-cv, 2011.)


CFATS. The Cybersecurity, Infrastructure Protection, and Security Technologies Subcommittee of the House Homeland Security Committee held a hearing to discuss the government’s Chemical Facility Anti-Terrorism Standards (CFATS) program. Under CFATS, chemical facilities work with the Department of Homeland Security (DHS) to develop a security program based on a facility’s risk level. The program, which was established in 2007, will expire at the end of this year. Lawmakers asked witnesses to give their opinions of the program and to address whether it should be made permanent.

Rand Beers, undersecretary of National Protection and Programs Directorate, testified about the CFATS program and its successes. Beers stated that the program covers 4,755 high-risk facilities across all 50 states. Of these, more than 4,000 have submitted security plans, and DHS is currently in the process of reviewing these plans. To help guide facilities, DHS has completed more than 175 inspections of high-risk facilities in advance of approving security plans. “The department intends to use these initial inspections to help gain a comprehensive understanding of the processes, risks, vulnerabilities, response capabilities, security measures and practices, and any other factors that may be in place at a regulated facility that affect security risk in order to help facilities submit a [security plan] that can be approved under CFATS,” said Beers.

Representatives for chemical facilities praised the government’s efforts and expressed support for the CFATS program. Timothy J. Scott, chief security officer and corporate director of emergency services and security for The Dow Chemical Company, spoke on behalf of Dow and the American Chemistry Council. Scott attributed CFATS’s success to the fact that security is addressed in context, with consideration for each facility’s needs.

“The accountability within the program drives facilities to consider all potential risk-reduction options, including potential process safety improvements, when developing a site security plan,” said Scott. “Just as important, it leaves the decision of how to meet the standards to the site’s discretion and subject to DHS approval of the site security plan. The result is a security plan approved by DHS that is uniquely and appropriately designed by the site to address the specific risk issues of each individual facility and meet the performance standards of DHS.”

Rep. Dan Lungren (R-CA), chairman of the subcommittee, expressed his reservations about the legislative push to put more emphasis on inherently safer technology (IST), a concept where the types of chemicals or processes used are altered to reduce the security risk. “IST isn’t something you can buy off the shelf or simply plug in. It is a concept, a not very well understood concept at that,” he said.

Scott agreed, and noted that mandating the use of any particular security method, including IST, would undermine the very feature that makes CFATS a success.

M. Sam Mannan, regents professor and director of chemical engineering at Texas A&M University, also concurred, stating that mandating ISTs could backfire, making facilities less secure. He noted that incorporating ISTs into existing facilities is complex and, in many cases, could result in unintended consequences that result in more risk or that just transfer it. For example, Mannan noted that replacing chlorine with a less combustible sodium hypochlorite could be considered an IST success. However, sodium hypochlorite is manufactured from chlorine, thus the risk has merely been transferred to another facility. Furthermore, unlike chlorine, sodium hypochlorite decomposes into perchlorates, which are toxic to humans.

Mannan also noted that IST is most successful when factored into the planning stages, making it impractical for most existing facilities. “Because inherent safety is an intrinsic feature of the design, it is best implemented early in the design of a process plant…[T]he U.S. has a huge base of installed process plants and little new construction,” said Mannan.

Beers expressed a contrary view on ITS. Beers said that all high-risk chemical facilities should assess IST methods and report those assessments in the site security plans. Also, Beers noted that facilities posing the highest degree of risk should be required to implement IST if such methods “demonstrably enhance overall security, are determined to be feasible, and, in the case of water sector facilities, consider public health and environmental requirements.”

CORPORATE CRIME. A bill (H.R. 323) introduced by Rep. John Conyers (D-MI) would require that the government keep statistics on all administrative, civil, and criminal judicial proceedings against companies and company officials that involve fines of $1,000 or more. The government would make information on improper conduct by companies with revenues of more than $1 billion available to the public via a Web site.

AVIATION SECURITY. A bill (H.R. 685) introduced by Rep. Sheila Jackson Lee (DTX) would make it illegal to record or distribute images obtained from security screening technology used in an airport or government building. Exceptions would be made for images being used in a criminal investigation or prosecution.


DISCRIMINATION. A new bill (S.B. 53) introduced in Kansas would expand state discrimination laws to prohibit discrimination by employers based on sexual orientation. Currently, employees are only protected from discrimination based on race, religion, gender, and disability.

BULLYING. Lawmakers in Washington are considering a bill (H.B. 1928) that would make it illegal for companies to subject employees to an “abusive work environment,” defined as a workplace where abuse is so severe as to cause physical or psychological harm to an employee. The bill would provide a defense for employers: they must prove that they took reasonable care to correct the abusive conduct and that the employee failed to take advantage of the corrective measures. Companies also have a defense if the bullying allegation is based on a legitimate negative employment decision, such as a demotion or termination, or if the allegation is in response to a company’s investigation of potentially illegal or unethical activity.

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