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Legal Report March 2012


WORKPLACE VIOLENCE. A California court has ruled that a company can rely on hearsay evidence in pursuing a restraining order against a potentially violent visitor.

On the day Diane Young-Barnes was terminated by a Kaiser Foundation hospital in California, her husband Jeff Wilson called the manager on duty at the hospital and said: “If something happened to my wife who just stepped out of the hospital right now, you are going to pay for this.”

The incident was the first in a series of threats made against Kaiser employees by Wilson. He threatened to “put down” two nurses and, after he was detained by police for making threats, Wilson said he was going to “kill someone.”

Kaiser filed a restraining order against Wilson to prevent him from coming onto its property. Under California law, an employer attempting to prevent violence against its employees may seek such an order.

At the hearing to determine whether a restraining order would be issued, the court heard evidence from Kaiser employees regarding Wilson’s behavior. One employee, Arlene Gibson, gave testimony that she received a telephone call from a police officer. The officer told Gibson that Young-Barnes had said that Wilson was going to shoot Gibson. At the hearing, Wilson’s attorney objected to the testimony claiming that it was hearsay and was, thus, inadmissible. The court allowed the testimony.

The court granted a three-year restraining order prohibiting Wilson from having any contact or communication with any Kaiser Foundation hospital or any of its employees. Further, Wilson was told to remain 200 yards away from any Kaiser facility.

Wilson appealed the decision, asking that the verdict be overturned. According to Wilson, the court relied on hearsay evidence to make its determination.

The California Court of Appeal upheld the decision. The court ruled that, under the law establishing the right of companies to request a restraining order, the court is ordered to consider any relevant testimony. The appeals court noted that “as long as the hearsay evidence presented… is relevant, the court is to consider it.”

In explaining its verdict, the court said that “Wilson made a credible threat of violence and that great harm might result to an employee of Kaiser, such that it was proper to issue an injunction prohibiting Wilson from further unlawful violence or threats of violence.” (Kaiser Foundation v. Wilson, California Court of Appeal, No. 37-2010-95475, 2011)

EMPLOYMENT. A company did not discriminate against a group of older employees when it fired them—but not two younger employees—for sending and receiving pornographic materials using their corporate e-mail accounts.

In October 2007, an employee of Latrobe Specialty Steel claimed that a coworker, Thomas Madgic, had sexually harassed her. The company launched an investigation and searched Madgic’s company e-mail. Investigators learned that Madgic and five other employees regularly exchanged emails containing sexually explicit photos using their corporate e-mail accounts. Because such activity was prohibited under the company’s electronic communications policy, Latrobe suspended the employees until the investigation was complete.

In determining how to discipline the employees, the company considered the nature and the volume of e-mails exchanged, whether they were sent to individuals outside the company, and whether they were sent to customers or vendors. The company decided to fire four of the six employees involved. All of the terminated employees were in their late 50s or early 60s.

The employees filed an age discrimination lawsuit against the company, claiming that they were fired because of their age and that the investigation was just a pretext. As proof of discrimination, the plaintiffs noted that the two employees who were not fired were young men. The plaintiffs also offered evidence of comments made by executives on other occasions. Executives said that they needed “new blood” and wanted to recruit a “younger workforce.” A specific plaintiff was told that he looked like he was ready to retire.

The court found the plaintiff’s arguments unpersuasive. The court noted that the company clearly had nondiscriminatory reasons for retaining the two younger men. One of them accessed pornographic Web sites from his computer but did not forward the content to anyone else. The other employee received the e-mails but did not send or forward them to anyone else. By contrast, the plaintiffs sent and received the e-mails on a daily basis. In evaluating the comments by executives, the court ruled that they were completely unrelated to the investigation and were considered “stray remarks.” (Hodczak, et al v. Latrobe Specialty Steel Company, U.S. Court of Appeals for the Third Circuit, No. 11-1085, 2011)


TRESPASSING. A bill (H.R. 347) that strengthens penalties for trespassing on certain federal properties has been approved by the Senate Judiciary Committee. The Senate has announced that it will consider the measure.

Current federal law prohibits unauthorized entry to any building or grounds where the President is visiting. However, there is no federal law specifically prohibiting unlawful entry to the White House and its grounds or the vice president’s residence and its grounds. To prosecute unauthorized attempts to enter these areas, law enforcement must use a provision in the laws of the District of Columbia. Under these statutes, violators are guilty of a minor trespassing offense.

H.R. 347 would make it illegal for anyone to knowingly enter or remain in the White House or grounds or the vice president’s residence or grounds without permission. The bill would also make it illegal to knowingly impede or disrupt government business or official functions in either location or to obstruct or impede ingress or egress to either location.

Under the bill, violators would be subject to a fine and up to one year in prison. If the violator carries a weapon or firearm or if the act results in significant bodily injury, the term of imprisonment could reach 10 years.

ECONOMIC ESPIONAGE. A bill (S. 678) that would increase penalties for economic espionage has been approved by the Senate Judiciary Committee. To proceed, the bill must now be taken up by the full Senate.

The bill would require that the U.S. Sentencing Commission consider a tiered system to address different types of espionage. S. 678 would also increase the prison term from 15 to 20 years in cases where trade secrets are funneled to a foreign government or agent. The sentencing commission would determine whether to apply a tiered system to cases where a person steals a trade secret and transmits or attempts to transmit the trade secret outside of the United States. Under this system, a further sentencing enhancement would apply to those who succeed in providing secrets to a foreign government.

WEAPONS. A bill (H.R. 822) that would require states to honor the concealed weapons permits of other states has been approved by the House of Representatives. The bill is now pending in the Senate Judiciary Committee.

Under the measure, a person who is carrying a valid, government-issued ID and a valid permit to carry a concealed weapon in one state may carry that concealed weapon in other states so long as the state being visited has a concealed permit law or does not prohibit concealed weapons. The bill would not create a federal concealed carry law, but rather seeks to require states to recognize concealed carry permits from other states.

PREPAREDNESS. A bill (H.R. 2405) that would reauthorize an appropriations bill designed to aid in pandemic preparedness has been approved by the House of Representatives. The measure is now pending in the Senate Health, Education, Labor, and Pensions Committee.

The bill would provide funds to maintain public health preparedness activities, including tracking influenza vaccine during a pandemic, assisting with state and local response, improving hospital surge capacity, and responding to bioterrorism threats.

The bill would also expand the government’s duties to include stockpiling materials to aid in the pandemic as well as securing those stockpiles. The government would identify gaps or inefficiencies in public health activities.



SUPPLY CHAINS. A new law (formerly S.B. 657) in California requires that companies doing business in the state disclose their efforts to eradicate slave labor and human trafficking from their supply chains.

Companies are required to conduct audits on their supply chains to ensure compliance with the law. Company employees and managers who have direct responsibility for supply chain management must be trained to recognize signs of slave labor and human trafficking and to mitigate the risks of such activities.

The law does not apply to retailers with less than $1 million in annual worldwide receipts.


PORT SECURITY. A new law (formerly H.B. 283) addresses inconsistences between state and federal port security regulations. In 2000, Florida enacted a port security law to address criminal activity in the state’s seaports. However, the federal seaport security standards enacted after the 9-11 attacks, preempted some aspects of the state’s provisions. The ports were also duplicating their efforts on some measures.

The new law repeals the state’s seaport security standards and revises the requirements for updating security plans to be consistent with federal requirements. Other changes include a prohibition on charging a fee for an access control credential because employees are already required to obtain the Transportation Worker Identification Credential. The state’s criminal history screening system is dismantled under the new law since it duplicates federal efforts.

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