Legal Report December 2011
U.S. JUDICIAL DECISIONS
MEDICAL MARIJUANA. The Washington Supreme Court has ruled that its medical marijuana law does not apply to private employers and does not protect employees from being fired for drug use.
A woman, called Jane Roe for purposes of the lawsuit, suffered from debilitating migraines and was prescribed medical marijuana by her doctor. The practice is legal in her home state of Washington. The treatment helped alleviate Roe’s migraines, allowing her to apply for work.
Roe was offered a position as a customer service representative at TeleTech, a telemarketing firm. The position was contingent upon the successful completion of a background check and a drug screening test. TeleTech’s hiring policy requires a negative drug test. Roe informed TeleTech of her medical marijuana use and offered to provide authorization from her doctor. TeleTech declined the offer of the doctor’s note but gave no indication that Roe could not be hired, so Roe began training for her new job.
When Roe’s drug test came back positive, she was informed that the company did not make exceptions for medical marijuana. Her employment was terminated.
Roe filed a lawsuit against TeleTech, claiming that the company violated state law when it refused to take her legal medical marijuana use into consideration. The company requested summary judgment— a hearing based on the facts of a case without a trial.
The superior court granted the summary judgment, ruling that the state law only provides a defense to criminal prosecution under state drug laws. It does not provide employment protections to medical marijuana users. Roe appealed the decision. The court of appeals also upheld the summary judgment. Roe then appealed the case to the Washington Supreme Court.
The supreme court ruled in favor of TeleTech, noting that the state’s medical marijuana law does not regulate the conduct of a private employer and does not protect an employee from being discharged because of medical marijuana use.
However, the decision was not unanimous; one member of the court, Justice Tom Chambers, offered a dissenting opinion. Chambers noted that Roe’s situation, though not protected by the letter of law, should be upheld in light of the spirit of the law.
Chambers wrote that Roe seemed to be the sort of person the law was designed to protect, because the medical marijuana treatment was provided just as any other drug would be, and its affects allowed Roe to rejoin the work force. Her prospective employer might at least be expected to reasonably accommodate her treatment so long as it did not create an undue hardship.
“TeleTech has a drug screening policy that prohibits employees from having any evidence of medical marijuana in the employee’s system without regard for whether the medical marijuana was consumed ‘on site,’ whether the medical marijuana affects the employee’s job performance, or whether the employer can reasonably accommodate the employee’s medical use,” wrote Chambers. “This case, along with many others, shows that the act is in need of legislative review.” (Roe v. Teletech, Supreme Court of the State of Washington, No. 83768-6, 2011)
U.S. REGULATORY ISSUES
WORKPLACE VIOLENCE. The Occupational Safety and Health Administration (OSHA) has issued a new directive on workplace violence. The OSHA directive advises companies to form a multidisciplinary team to draft a workplace violence prevention program. The directive states that “OSHA believes that a well written and implemented workplace violence prevention program, combined with engineering controls, administrative controls, and training can reduce the incidence of workplace violence in both the private sector and federal workplaces.”
The document says that “inspectors should…gather evidence to demonstrate whether an employer recognized, either individually or through its industry, the existence of a potential workplace violence hazard.”
U.S. CONGRESSIONAL LEGISLATION
TRADE SECRET THEFT. At a recent hearing on “Cyber Threats and Ongoing Efforts to Protect the Nation,” members of the House Permanent Select Committee on Intelligence focused attention on China. Committee Chairman Mike Rogers (R-MI) noted that cyber theft by the Chinese government is a particularly thorny problem because the activities are targeting U.S. companies rather than the U.S. government. “I don’t believe that there is a precedent in history for such a massive and sustained intelligence effort by a government to blatantly steal commercial data and intellectual property,” Rogers said at the hearing.
Witnesses at the hearing testified that U.S. companies are not prepared for these cyberattacks because the attacks are much more sophisticated and well-planned than those launched by nongovernment actors. “Many American corporations may have been compliant and diligent, but they were not prepared for advanced threats,” said Kevin Mandia, CEO of Mandiant Corporation, a company that specializes in cyber incident response and computer forensics.
Even when theft is committed by private companies in China rather than the Chinese government, U.S. corporations face significant legal hurdles in the country. Companies that experience cyber theft in the United States can pursue legal remedies such as an injunction to prevent a rival company from disclosing or using stolen intellectual property. However, according to legal experts, remedies for companies doing business in China are far less robust. “A company cannot file a lawsuit in China until there has been a proven misappropriation,” says Mark Halligan, an attorney specializing in intellectual property litigation for Nixon Peabody in Chicago.
Also, it may be difficult for companies to prove that the intellectual property theft occurred at all. “Companies don’t have full discovery rights in China as they do in the United States,” Halligan told Security Management. “In the United States, companies can get preservation orders to seize the evidence to show that it was stolen and get some discovery. This doesn’t happen in China.”
To help deal with legal issues, Halligan advises clients to build trade secret protection into their contracts, because contracts are respected in China. “The contract should spell out what constitutes misappropriation and should discuss damages as well as specifying what court will hear the case,” Halligan says. “This sets up the mechanism for adjudication.”
NATIONAL SECURITY. A bill (S. 1125) to amend the Patriot Act, which was passed in the wake of 9-11, has been approved by the Senate Judiciary. The full Senate has agreed to consider the measure.
The bill would revise the requirements for government access to business records in counterterrorism investigations by requiring the applicant to present a statement of facts and circumstances that justify the government’s belief that the records are relevant to an investigation. Currently, the law allows the government to presume that such records are automatically relevant.
S. 1125 imposes similar requirements for access to bookseller records or library records containing personally identifiable information, and for orders for pen registers and trap and trace devices.
Similarly, the bill would modify the procedures for obtaining a national security letter (NSL). An NSL is a form of administrative subpoena that requires no probable cause or judicial oversight. S. 1125 would require that the FBI or other agency issuing an NSL provide a written statement of facts enumerating why the information sought is relevant to the investigation.
CORRUPTION. A bill (S. 401) that would revise the criminal code to strengthen penalties for bribery and corruption convictions has been approved by the Senate Judiciary Committee. The bill will now be considered by the full Senate.
The bill would expand mail and wire fraud statutes to cover offenses involving anything of value including intangible rights and licenses, for example, not just monetary goods.
The measure reduces the threshold amount for theft or bribery involving federally assisted programs from $5,000 to $1,000 and increases the maximum prison term for such offenses from 10 to 15 years. The maximum term of imprisonment for theft and embezzlement of federal money, property, or records would be increased from 10 to 15 years and prison terms for bribery offenses would go from 15 to 20 years.
The measure would also modify elements relating to the crime of bribery of public officials and witnesses to prohibit public officials from accepting anything of value, other than what is permitted by rule or regulation, for or because of the person’s official position. The bill would expand the definition of “official act” to include any conduct that falls within the range of a public official’s duties.
BORDER SECURITY. A bill (H.R. 915) that is designed to improve security along the U.S. border with Mexico, has been approved by the House Homeland Security Committee. The House of Representatives has not announced whether it will take up the measure.
The bill would require that U.S. Immigration and Customs Enforcement (ICE) establish a border enforcement security task force that would facilitate collaboration among federal, state, local, tribal, and foreign law enforcement agencies. These groups would share information and launch coordinated crime reduction activities.
ICE would be required to report to Congress on the effectiveness of the program in enhancing border security and reducing drug trafficking, arms smuggling, illegal alien trafficking, violence, and kidnapping along the border.
WEAPONS. A new Indiana law (formerly S.B. 411) prohibits employers from asking prospective or current employees questions about firearm ownership. Employers may not ask whether the employee owns, possesses, uses, or transports a firearm or ammunition unless these activities are required to fulfill the employee’s job duties.
No employers are excluded from the new law, meaning that schools, facilities, domestic violence shelters, and government antiterrorism agencies must comply with the new law. Under a prior law, employers were already not allowed to prohibit firearms from being stored in locked cars in the company parking lot.
DATA SECURITY. California enacted a data-breach-notification law in 2002 requiring that companies notify consumers when a breach occurred. However, the law did not mandate what type of information should be provided. A new law (formerly S.B. 24) passed in August requires that consumers be notified of the date and time of the breach, the types of data compromised, how to contact both the company and major credit reporting agencies, and whether notification was delayed due to a law enforcement investigation.
This column should not be construed as legal or legislative advice.