February 4, 2008
Those of you who were interested in Ross v. Ragingwire Telecommunications — the case that said you can be fired for using legal-in-California medical marijuana — may also be interested in a couple of other cases I ran across this morning. Both are about whether an employer can fire you for legal behaviors you engage in outside of work that aren’t directly related to work.
The one with the more obvious analogy to Ross is Rodrigues v. Scotts Co., out of Massachusetts federal court. The plaintiff got a job with a company that forbids smoking, and when a pre-employment pee test turned up nicotine, he was fired. Interestingly, he based his suit on ERISA (that’s the Employee Retirement Income Security Act, which regulates worker benefit packages) as well as some Mass state laws. Prof. Secunda from Workplace Prof Blog isn’t sure how robust the ERISA claim is; I wonder if Rodrigues thought he’d have more luck in federal court. So far, he’s right insofar as the district court denied summary judgment. A lot will probably turn on what argument the guy’s lawyers make and whether the jury thinks saving money on health insurance is a compelling reason to discriminate on the basis of smoking.
The other case I ran across is a Ninth Circuit opinion on whether a police officer can legally be fired because he and his wife run an amateur pornography site during their off hours. Dible v. City of Chandler. The officer got fired, got annoyed, and filed a lawsuit alleging First Amendment violations. The district court in Arizona granted summary judgment to dismiss the case, and the Ninth Circuit upheld it. The majority seems to be saying Dible’s behavior may or may not have been work-related, but wasn’t protected by the First Amendment because it wasn’t speech on a matter of public concern, cast the police department in a bad light, and anyway he broke police department rules. There’s a dissent that seems to say that Dible’s First Amendment claim is legit because his behavior wasn’t explicitly work-related, and that’s all that matters.
Considering both opinions and Ross all together, it’s not at all clear to me that the courts will protect employees from firing based on behaviors they engage in on their own time. I’ll leave the slippery slope argument for others to make, but I’d be interested to see whether any employer has made a rule against junk food or other health-related behaviors.
Get out your dictionary, BTW, for this line from Dible:
Whatever a periplus of the outer limits of public concern might show, it was pellucid that Roe’s vulgar behavior would be discovered to be outside of those borders.
Written for the majority by Judge Ferdinand F. Fernandez (really!). OK, Judge Fernandez, we promise we’re paying attention.
January 30, 2008
It must be an election year. Check out the proposed Civil Rights Act of 2008. That’s a link to the Workplace Prof Blog, and the post’s author, Professor Hirsch, believes it’ll be a campaign issue. I do hope so. It looks like a laundry list of employee-friendly (thus mostly business-unfriendly) changes to the law, mostly having to do with expanding possible damages and expanding who’s covered by worker civil rights laws. There’s also an arbitration provision that I think will interest at least 33% of my three readers: It prohibits clauses that compel arbitration of federal statutory or constitutional claims unless everyone agrees to it after the dispute. Can someone more knowledgeable than me explain whether that will have significant scope beyond civil rights laws?
However, I did notice that the bill doesn’t seem to address the Supreme Court’s ruling in Ledbetter v. Goodyear Tire, which for those of you playing along at home, was the ruling denying a woman’s pay discrimination claim because she waited too long to file it, because she didn’t know there was a pay disparity until the clock had run out. (That’s often not how it works; in a lot of situations, the clock on a tort claim starts after you discover the problem.) Google suggests that this is covered by a bill introduced last year called the Fair Pay Restoration Act.
January 24, 2008
The California legal blogosphere is excited today about the California Supreme Court’s decision in Ross v. Ragingwire Telecommunications, Inc. Watch out; that’s a PDF, which you can expect all of my case links to be. In a nutshell, the case says the California medical marijuana law (aka Prop 215, aka the Compassionate Use Act) doesn’t protect you from getting fired by an employer with a no-drugs policy.
Ross, the plaintiff, smokes marijuana to relieve chronic back pain. He got a job that required pre-employment drug testing. He failed. He was fired. He sued for wrongful termination and disability discrimination under the state Fair Employment and Housing Act. SCOCAL (like SCOTUS, but for California, meaning less publicity and more backlog) said too bad. As I understand it — and I am not a lawyer — the court said the Compassionate Use Act is only meant to lift state criminal penalties for users with prescriptions. Quoth Justice Werdegar: “Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees.”
Frankly, duh. But I do question the usefulness of a law with so few teeth — do we want people with liver cancer to get fired for following doctors’ orders (or go to federal prison)? The state legislature is a mess, but they could do worse with their time than clarify whether they want pot to be treated like prescription drugs for civil purposes.
Takes from actual lawyers at California Appellate Report, What’s New In Employment Law?, Storm’s California Employment Law and probably soon Workplace Prof Blog and The UCL Practitioner.
January 22, 2008
So there’s a piece in today’s LA Times about financial fraud in Second Life. In case you’re not familiar with Second Life, it’s an online role-playing type of video game in which there’s an entire virtual society, including a currency. (I should note that I don’t play there; my information all comes from the media.) People are setting up banks, and apparently some of those banks turned out to be run by people who took the money and disappeared. The article calls this a Ponzi scheme, I guess because they entice investors by offering really high interest rates. But as far as I can tell, it’s just old-fashioned theft/financial fraud.
Now for the lawyer stuff:
The Ginko debacle and Linden Lab’s response to it is raising fresh questions about the need for regulation over — not to mention the wisdom of — financial transactions in a place that doesn’t exist….
No individual seems to have lost enough money to make filing a lawsuit worthwhile, said Robert Bloomfield, a Cornell University professor who has been following the Ginko case. Anyway, because Second Life members live in different countries, “it’s not at all clear what jurisdiction you would file suit in,” he said.
Multiplayer computer-based gaming environments such as Second Life aren’t monitored by real-world regulators.
What occured to me here is that this article doesn’t seem to address the possibility of criminal penalties. Obviously, there’s a huge jurisdiction question to be answered, and they’d have to actually catch the perps. But let’s pretend we have them and that we can use the law of the State of California, where Second Life’s parent company, Linden Labs, and I are both based. I am not a lawyer, but I can find a few different parts of the state Penal Code that seem to apply. I’m sure larceny, embezzlement and fraud are also illegal in most other states and nations, and I’m pretty sure most of them provide for court-ordered repayment for victims. So why skip straight to a civil action?
By the way, I also think Second Life might be a great laboratory for people who advocate less government regulation. Linden Labs forbids almost nothing (so far, just online banks, gambling and simulated sex with simulated children, two of which were probably forced by federal law), so users have to more or less police themselves and watch their own backs. It would be nice to think that users will seek out and stop fraud, but if the Industrial Revolution offers any guide, I’m guessing it won’t be effective. You know what P.T. Barnum is alleged to have said.
January 21, 2008
More here. Whatever else you wanna say about R-n P-ul supporters, they’re clearly true believers. (So much so that I have taken to misspelling his name, so they won’t spam whichever blog I’m on.)
January 18, 2008
I am a big fan of legal documents that don’t read like legal documents. It saves everyone a lot of time and hassle if you can just say it in plain language. That said, however, “legalese” can be necessary. Like when you need to be specific enough to avoid liability. Like, say, when you’re writing an employee handbook for the major newspaper you have just bought. From the LA Times, reporting on itself (!):
San Francisco lawyer Mark Schickman applauded the Tribune handbook for eliminating legalese. “But in an effort to be brief and funny, they’ve made a lot of mistakes,” he said.Among its nine “core values,” the manual encourages employees to “Question authority and push back if you do not like the answer. You will earn respect, and not get into trouble for asking tough questions.”
To Schickman, who represents employers, that means if you try to terminate someone for being argumentative and insubordinate, the employee could argue that he or she was simply questioning authority and pushing back.
I’ve been in the workforce too long to think that anyone is going to actually try questioning authority and pushing back. In my experience, this earns you an invisible mark of Cain. However, you don’t need to have actually believed it in order to sue over it — you just need to be able to point to a rule that allows it.
It’s just an employee handbook, which in my experience means people will ignore it until it’s excuse-finding time. However, I’m interested to see whether it actually is cited in someone’s future lawsuit. There are legitimate gray areas there.
Kevin Roderick was nice enough to point out that the whole thing is available here in PDF form.
January 17, 2008
But he needs some very patient and expensive ones, as anyone who pays attention to American Apparel probably knows. Dov Charney is the hipster clothing company’s founder and chief executive, and he’s consistently rumored to be a sexual harasser. The LA Times ran an article today about the fourth sexual harassment lawsuit against him, and what struck me is that he’s using a really bad affirmative defense:
Nelson, 36, who worked for American Apparel for a little more than a year, claims Charney also referred to women as “whores” and “sluts” and invited her to masturbate in front of him. Nelson’s suit alleges she was fired the day she consulted a lawyer.The company contends that there was no harassment. Rather, “American Apparel is a sexually charged workplace where employees of both genders deal with sexual conduct, speech and images as part of their jobs,” Charney’s lawyers said in court documents.
Wait, it gets better…
Charney casts the world of American Apparel in particular and fashion in general as a business where everyone casually dresses and undresses for creative reasons and uses foul language with abandon.”You talk to any man who works in entertainment or fashion, and if he tells you he has not used the word ’slut’ . . . I think he’s lying.”
There’s a lot more in the article, but I think that’s the money quote. (For my purposes, anyway.)
If major clothing retailers were constantly being sued for this sort of behavior — and if it were substantially connected to their business — I could maybe buy it. Though I’m not sure a jury would.
January 10, 2008
I’m a writer who specializes in writing about the law — but I am not a lawyer. This can be both frustrating and a huge relief for someone who writes and reads regularly about the U.S. legal industry. I want this blog to be the home for all of the legal musings that bore my family and nonlawyer friends to death. Likely topics include personal-injury law, funny stuff I find in state criminal/penal codes online, things I find frustrating about not being a lawyer, absurd contract clauses, work/life balance issues at big firms and mockery of Loyola 2L. I’m planning on keeping the politics to a minimum, and if I can’t, I’ll turn off comments so the internet drones can’t mess it all up.
I’m also not the owner of ianal.wordpress.com, which appears to be about digital copyright issues, though I wish this person well. His/her choice to use the acronym probably saved me from having to resist the temptation to choose an embarrassing blog name.
More content and prettier layout TK when I’m not late for anything. In closing, I’d like to compliment the lawyers for Automattic for writing a reasonably user-friendly Terms of Service page. In addition to covering their behinds thoroughly, they provided a cheat sheet at the beginning, highlighted the stuff that was most likely to cause problems for users and threw the reader a bone in the Disclaimer of Warranties paragraph. If I could have struck out the mandatory arbitration clause, I’d have been even happier. Oh yeah, I might make mandatory arbitration posts too.
