Legal Report March 2014
U.S. JUDICIAL DECISIONS
SOCIAL MEDIA. The National Labor Relations Board (NLRB) has ruled that a company did not violate the National Labor Relations Act when it fired employees for a Facebook conversation that discussed their work environment. The company, said the NLRB, had legitimate concerns about the two employees because their comments jeopardized the safety of youth in their care.
Ian Callaghan was employed as a teen activity leader by the Richmond District Neighborhood Center in San Francisco. He was stationed at the Beacon Teen Center space, which served George Washington High School. Kenya Moore also worked at the Beacon Teen Center as a teen center program leader. In May 2012, the teen center employees had a staff meeting where their supervisor, Rena Payan, asked the employees to fill out evaluations regarding her job performance. She then instructed the staff to fill out large sheets of butcher block paper regarding the pros and cons of working for the Richmond District Neighborhood Center.
On July 30, 2012, Callaghan was sent a rehire letter as a teen activity leader, but Moore was demoted and sent a rehire letter not as a teen center program leader, but as a teen activity leader. In response, on August 2, 2012, Moore contacted Callaghan through Facebook, which was the first and only time the two had a conversation via the social media platform while working together. Callaghan was Facebook friends with Moore, fellow coworker Sarah Godfrey, and manager Alexandria Tom. At that time, Callaghan’s Facebook page was set to “just my friends” and was not public.
Moore and Callaghan engaged in a conversation on Facebook, addressing issues that were discussed at the May meeting with Payan, if they would return to the teen center, and what they would do once they were both teen activity leaders. Callaghan said they would have “crazy events at the [Beacon Teen Center] all the time” without asking permission. Moore responded, saying that if “they start losin’ kids I ain’t help’n.” Moore also said that she would “never be there” and that she would have clubs and “take the kids.”
On August 3, 2012, Sarah Huck, a family program coordinator for the Richmond District Neighborhood Center, sent screenshots of Callaghan and Moore’s conversation to her supervisor and the center’s director. The director contacted human resources, requesting that Callaghan and Moore not be rehired. The center decided to terminate Callaghan and Moore on August 6 and sent the two letters rescinding their rehire offers, citing concerns based on their Facebook conversations that “the employees would not follow directions of their manager and could endanger the youth.”
Callaghan filed a charge in October of 2012 alleging that the center violated the National Labor Relations Act, which states that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise” of their rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.
Administrative Judge Jay R. Pollack for the NLRB ruled that Callaghan and Moore were engaged in protected concerted activity when voicing their disagreement with management’s running of the teen center on Facebook.
However, Pollack dismissed the claim because Callaghan and Moore’s comments “jeopardized the program’s funding and the safety of the youth it serves,” making the two unfit for employment at the teen center and giving the neighborhood center the right to terminate their employment. (Richmond District Neighborhood Center v. Ian Callaghan, National Labor Relations Board, San Francisco Division, No. 20-CA-091748, 2013)
EMPLOYMENT. A federal court of appeals has ruled that the Department of Homeland Security (DHS) was within its rights when it demoted a deportation officer who had been deemed unfit to testify in criminal prosecutions—a primary aspect of the officer’s employment—after he lied in a police investigation and was suspended. The DHS, ruled the court, did not subject the employee to double punishment when he was suspended and later demoted for actions stemming from the same incident. The department, the court ruled, had the authority to demote the employee because he was unable to perform his full range of duties as a law enforcement officer.
Trong Nguyen was a deportation officer for DHS at the agency’s San Francisco Detention and Removal Operations Field Office and was often required to testify as a witness during grand jury proceedings and criminal prosecutions.
While employed by the DHS in San Francisco, Nguyen colluded with a Sears manager named Jeff to create a false transaction to buy a refrigerator with an employee discount. During a police investigation, Nguyen denied wrongdoing. However, Nguyen confessed to lying to the police when an investigation was launched by the government’s Office of Professional Responsibility (OPR). The OPR investigation also uncovered that Nguyen, without authorization, wrote a letter on agency letterhead to Jeff’s mortgage company and signed it using his title as Immigration Information Officer, and that Nguyen used law enforcement resources to conduct queries on Jeff’s criminal history and immigration status.
Nguyen was charged by DHS with misuse of law enforcement resources, receiving and reviewing an alien file for unofficial business, and conduct unbecoming a federal law enforcement officer. He was suspended for 14 days.
After becoming aware of the suspension, representatives from the U.S. attorney’s office told Nguyen that he could no longer swear out complaints or testify in court because his credibility was impaired. DHS suspended Nguyen’s authorization to carry a firearm and then demoted Nguyen because he could no longer perform the duties of a law enforcement officer.
Nguyen appealed the decision, arguing that the demotion was double punishment for the same misconduct because the demotion and his inability to testify stemmed from the same incident—the police investigation.
An administrative judge ruled that the demotion was based on the U.S. attorney’s determination that Nguyen was unable to perform his full range of duties, not on his earlier misconduct with the Sears refrigerator. Therefore, he had not been subject to double punishment for the same misconduct. Nguyen appealed to the United States Court of Appeals for the Federal Circuit. The appeals court upheld the board’s decision. (Nguyen v. Department of Homeland Security, U.S. Court of Appeals for the Federal Circuit, No. 2013-3024, 2013)
TRANSPORTATION SECURITY. A bill (H.R. 2719) introduced by Rep. Richard Hudson (R-SC), that would require the Transportation Security Administration (TSA) to take steps to improve its acquisition process of security technology has been approved by the House of Representatives. The bill is now pending in the Senate.
According to comments released by the House Homeland Security Committee, the “TSA has repeatedly purchased and deployed equipment that was not properly tested or failed to meet performance objectives.” H.R. 2719 is designed to remedy this situation by requiring the TSA to develop a multiyear strategic plan for purchasing security equipment. The TSA would also have to conduct a cost-benefit analysis for purchases and create an inventory tracking system.
SECURITY CLEARANCES. Two bills introduced in the Senate would strengthen the existing security clearance process by improving access to information and increasing penalties for those who abuse the system.
S. 1618, introduced by Sen. Susan Collins (R-ME), would require the Office of Personnel Management (OPM) to review security clearances at least twice every five years. This review would measure the accuracy and comprehensiveness of the clearance information. The OPM would be required to integrate information from various sources, including government and commercial data sources, major consumer reporting agencies, and social media; and to perform the review. S. 1618 has six cosponsors and has been referred to the Senate Committee on Homeland Security and Governmental Affairs.
S. 1744, introduced by Sen. Jon Tester (D-MT), would require that the OPM terminate any employee involved in “misconduct affecting the integrity” of the background checks the OPM conducts for security clearances. According to the bill, such misconduct would include falsification of a background investigation report, fraud relating to such a report, or other serious misconduct that would compromise the integrity of a report. The bill would also require that President Obama review the guidelines for security clearances to determine which positions require clearances. These guidelines would be reevaluated every five years. S. 1744 has six cosponsors and has been referred to the Senate Committee on Homeland Security and Governmental Affairs.
Privacy. Governor Edmund G. Brown, Jr., signed a bill (formerly S.B. 46) into law that will impose additional requirements on the disclosure of a security breach when the breach involves personal information that would permit access to an online or e-mail account.
Prior to the approval of the law, agencies were required to notify residents if their unencrypted personal information, including Social Security numbers, driver’s license numbers, financial accounts, or medical information was breached, or believed to have been breached. However, no provisions dealt with online account information.
The new law requires agencies, people, and businesses conducting business in California to notify residents when their personal information, such as a user name and password, for an online account is compromised. Agencies may notify individuals electronically of the security breach and should encourage them to “promptly” change their password, security question, and answer. Individuals are urged to take additional steps to protect their online account and other accounts that may use similar personal information.
However, if a resident’s login credentials for an e-mail account are compromised, the law prohibits agencies from notifying the account holder with an e-mail to the breached account unless an e-mail is sent when the agency can verify that the true account holder is online and connected from an IP address, or online location, the agency knows he or she typically uses to access the account. Instead, agencies can notify residents via regular mail.
Bullying. A bill (H.B. 1766) introduced in the General Court of the Commonwealth of Massachusetts would prohibit bullying in the workplace. Under the bill, it would be illegal for employers to retaliate against an employee who complained of bullying. An employer could be held liable for bullying unless it could prove that it exercised reasonable care to prevent and correct bullying and that the employee failed to take advantage of protections offered by the employer. Individual employees could also be liable for bullying conduct under the bill.