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Legal Report May 2013


INVESTIGATIONS. A California appeals court has ruled that an employee may be legally fired for failing to cooperate with an internal investigation.

John McGrory was hired by Applied Signal Technology as a section manager in 2005 and was later promoted to department manager. In late 2008, McGrory issued a verbal warning to one of his employees, Dana Thomas. McGrory said that Thomas had exhibited poor performance and lax attendance. In response to the warning, Thomas filed a discrimination complaint, claiming that McGrory discriminated against her based on her gender and sexual orientation.

The company hired a female attorney, Sejal Mistry, to conduct an investigation. Mistry interviewed McGrory and his staff.

In June 2009, Mistry provided her report to the company. She exonerated McGrory of discrimination, saying that she felt Thomas did have work performance problems. However, she found that McGrory had been uncooperative and untruthful during the investigation. She also found that he was in violation of the company’s sexual harassment policy because he told vulgar jokes in the workplace. As a result of the report, the company fired McGrory.

McGrory then filed a lawsuit against the company, alleging that his firing was illegal retaliation for statements he made during the investigation. The company requested summary judgment—a hearing based on the facts of a case without a trial. The trial court granted the summary judgment, ruling that the company had a legitimate, nondiscriminatory reason for termination. McGrory appealed the decision.

The California Court of Appeal upheld the lower court’s decision. The court noted that refusing to participate in a workplace investigation may “be a protected activity when it amounts to opposition to a forbidden practice,” but that “refusing to participate in or cooperate with an investigation into a discrimination claim is not…a protected activity.”

The court was also clear that misconduct during an investigation is not protected under public policy. In the written opinion of the case, the court said that federal law “does not shield an employee against termination or lesser discipline for either lying or withholding information during an employer’s internal investigation of a discrimination claim…such conduct is a legitimate reason to terminate an at-will employee.” (McGrory v. Applied Signal Technology, California Court of Appeal, No. H036597, 2013)

DRUG DOGS. The U.S. Supreme Court has ruled that training and testing records support a drug dog’s reliability in establishing probable cause for a search. The dog’s alert was one part of the totality of circumstances that allowed the search to go forward.

In the case, a police officer conducted a traffic stop after determining that Clayton Harris was driving with expired tags. During the stop, Harris appeared twitchy and anxious. The officer suspected that Harris might be under the influence of methamphetamines. The officer asked to search Harris’ truck. Harris refused.

The officer deployed Aldo, a drug sniffing dog. Aldo alerted on the driver’s side door of the truck. When officers searched the truck, they found 200 pseudoephedrine pills, eight boxes of matches, and muriatic acid—all precursor ingredients for creating methamphetamine. Harris was arrested.

At trial, Harris argued that the search of his truck was illegal because the alert of the dog did not constitute a basis for the search. On appeal, the Florida Supreme Court agreed. The court found that the state had not established the dog’s credentials and that a dog’s reliability may be based on a variety of factors.

For example, the court noted that Aldo was trained to detect cannabis, cocaine, ecstasy, heroin, and methamphetamine but was not trained to detect alcohol or pseudoephedrine. Similarly, field training, false alert rate, and handler training could also be considered when determining whether Aldo was reliable.

In this case, argued Harris, the officer did not keep the records of Aldo’s field alerts or false alert rate. The court ruled that the officer could not have probable cause without these records. The state appealed the decision to the U.S. Supreme Court.

The U.S. Supreme Court overturned the decision, finding that probable cause does not rely on a single issue, but is instead predicated on the totality of the circumstances. In the written opinion of the case, the Court said: “Requiring the state to introduce comprehensive documentation of the dog’s prior hits and misses in the field, and holding that absent field records will preclude a finding of probable cause no matter how much other proof the State offers, is the antithesis of a totality-of-the-circumstances approach…. Field records may sometimes be relevant, but the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.” (Florida v. Harris, U.S. Supreme Court, No. 11-817, 2013)


CYBERSECURITY. President Barack Obama has issued a much-anticipated Executive Order on cybersecurity (first reported in “Homeland Security,” April). The White House released the executive order in response to some high-profile reports of hacking by nation states, including China, and because Congress had failed to pass cybersecurity legislation. According to the White House, the order is designed to enhance information sharing, develop best practices, and ensure privacy.

To improve information sharing, the executive order charges the Department of Homeland Security (DHS) with providing real-time information on cyber threats to companies that manage critical infrastructure as well as state and local governments.

Federal agencies will be required to provide information to companies that are targets of cybercrime. The order also requires DHS to expedite clearances for employees dealing with sensitive and classified information on cyberthreats and to try to declassify more information.

Under the order, the National Institute of Standards and Technology (NIST) will work with the private industry to identify “existing voluntary consensus standards and industry best practices and use those to develop a cybersecurity framework.” NIST has already begun this process.

The best practices will not advance specific technology but will be technology neutral. The order requires that government agencies involved in implementing cybersecurity policies incorporate privacy and civil liberties protections.


EMBASSY SECURITY. A bill (S. 227), introduced by Sen. Patrick Leahy (D-VT), that would shift funds to protect foreign embassies has been approved by the Senate and is now pending in the House of Representatives. The money would be transferred from military operations in Iraq, which are winding down, to U.S. embassies and other overseas posts that have been identified as vulnerable by the State Department.

CHEMICAL FACILITIES. A bill (S. 62), introduced by Sen. Frank Lautenberg (DNJ), would create a program similar to the Chemical Facilities Anti-Terrorism Standards (CFATS) program. Though the bill does not mention CFATS, it affirms much of the program.

The bill would regulate security practices at chemical facilities. The measure would assign such facilities to one of four risk-based categories and then establish standards for vulnerability assessments and site security plans. Each facility owner or operator would be required to submit an assessment and plan under the program. These would have to be approved by the Department of Homeland Security (DHS).

S. 62 includes the possibility of using inherently safer technology (IST) to meet site security requirements. Under the bill, the government would establish a standard for determining whether ISTs are feasible.

The bill would establish an Office of Chemical Facility Security within the DHS. This office would be responsible for conducting facility security inspections and for reviewing and analyzing site plans. The government would share threat information with owners, operators, or security officers at the chemical facilities.

S. 62 also sets out whistleblower protections for employees of a covered chemical facility who report safety violations.

The bill has no cosponsors and has been referred to the Senate Homeland Security and Government Affairs Committee.


MARIJUANA. A task force established by Colorado Governor John Hickenlooper has determined that employers may still prohibit the off-duty use of marijuana by employees. The task force was convened because a bill approved by voters last November allows the distribution, possession, and use of small amounts of recreational marijuana. The task force urged employers in the state to review their drug use and testing policies in light of the new law, but it did not require employers to accept marijuana use by employees, even when those employees are off duty.

FIREARMS. Virginia legislators introduced two bills related to firearms. One bill (H.B. 1577) would require every school in the state to have at least one person on staff who is a trained and certified carrier of a concealed weapon. H.B. 1577 has been approved by the Subcommittee on Militia, Police, and Public Safety and is now pending before the full committee.

Another bill (H.B. 2340) would have prohibited any Commonwealth employee from enforcing federal statutes that restrict gun “ownership or private transfer of firearms, firearm magazines, ammunition, or components thereof.” The bill was approved by the Committee on Militia, Police, and Public Safety but was rejected by a vote of the entire House of Representatives.

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