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Real Life Is Stranger Than Fiction

Employment attorneys always tell their colleagues that the best practice area is undoubtedly employment law. HR professionals probably feel much the same way. Every personnel situation is different, it’s never boring, and just when you think you’ve seen it all, you hear about another wild day in the workplace. 2018 was no different, and the following real-life cases prove it.

Georgia man gets a kick in the butt(dial)
James Stephens worked as the Fiscal Officer for the Georgia Subsequent Injury Trust Fund, a state agency. After work one day, Stephens’ boss, Michael Coan, called Stephens at home on his cell phone and they talked about work for a while. Stephens hung up, put his cell phone in his pocket, and went on a rant to his wife for 12 minutes about Coan.
Unfortunately for Stephens, he had inadvertently “pocket-dialed” Coan, who heard the whole rant. When Stephens went to work in the morning, Coan gave him a choice – resign or be fired. Stephens resigned, then he and his wife sued Coan under Georgia’s eavesdropping law and for invading the Stephens’ right to privacy. The Stephens claim that Coan had a legal obligation to hang up when he realized the call was inadvertent rather than listen in to the Stephens’ private conversation.
Coan filed a motion to dismiss the lawsuit, arguing that Coan was immune from the suit because he was acting in his official capacity as a state supervisor and had a right to listen to the conversation of a subordinate employee who was discussing workplace matters. Coan went on to argue that the termination was appropriate because, given Stephens’ opinions and criticism of Coan’s job performance, Coan could no longer have an effective working relationship with Stephens or trust him as a subordinate.
The lower court agreed with Coan and dismissed the case, but Stephens appealed the decision and the case is pending.
If this is an emergency, immediately dial 9-1-1
Brian Taylor, an employee at a salmon farm in Maine, was working a 12-hour overnight shift cleaning the facilities and equipment when he consumed either heroin or cocaine that he claims a co-worker gave him. After taking the drugs, and while putting on rubber boots, Taylor fell striking his head on the floor. Taylor’s co-workers found him unconscious, but rather than call 911, they placed him in a cold shower and called a manager. Unfortunately, the manager didn’t respond until four hours later. When the manager arrived at the site he immediately called 911, but at that point, Taylor was non-responsive, had irregular breathing, and required five doses of Narcan, an opioid overdose antidote, to revive him. Taylor ultimately suffered permanent injuries resulting in his confinement to a wheelchair.
Normally, workers’ compensation would cover workplace injuries. But in this case, the workers’ compensation insurance carrier denied coverage because Taylor’s injuries occurred after he used illegal drugs during his shift.
So, Taylor sued his employer for failing to provide a reasonably safe workplace, arguing that the farm failed to properly train employees to render aid. In his lawsuit, Taylor claims the drugs did not cause his permanent injuries; rather, it was his co-workers’ failure to get him immediate treatment after he collapsed at work. Had his co-workers immediately called 911, he argues, he likely would have needed only a single dose of Narcan and probably would not have suffered any lasting injury. Taylor also claims that employees at the farm routinely used, sold, and distributed drugs on site while working, and the employer knew or should have known about the conduct, but failed to enforce its own anti-drug policies.
Not surprisingly, the employer responded to the lawsuit by pointing the finger right back at Taylor. The employer noted that Taylor’s conduct violated the farm’s express policy barring employees from using alcohol or drugs on-the-job or being under the influence while working. And, the employer claims that Taylor’s injuries were entirely, or at least partially, the result of his own misconduct. When Taylor took drugs at work, the farm argues, he knew and assumed the risk of an overdose and the resulting injuries. We’ll be interested to see how this case turns out in 2019.
Leave your personal life at home (but not on a work computer)
Paul Iacovacci was a managing director of a New York finance firm. The company provided Iacovacci with a desktop computer so he could work from his home in Connecticut rather than commute to the company’s NYC office. Though Iacovacci did use the computer for work, he and his family used it for personal reasons as well, and Iacovacci also plugged two personal hard drives into the computer.
The company fired Iacovacci, and he filed a wrongful termination lawsuit on October 17, 2016. That same night, his employer logged in remotely to the work computer in Iacovacci’s home. Once in, the employer was able to access information on Iacovacci’s personal hard drives as well as his personal email, which he had left open on the screen. The company used that information to sue Iacovacci for stealing confidential information.
But Iacovacci might (stress, might) have the last word. He countersued the company for invading his privacy. He claims the company violated the Computer Fraud and Abuse Act, the Federal Wiretap Act, the Stored Communications Act, and the New York common laws of trespass and conversion (basically, theft) when the employer accessed and retrieved the data stored on the personal drives and in Iacovacci’s personal email.
The company doesn’t dispute that it remotely logged in and accessed the information on the personal drives and email. But it says the conduct was justified because the computer was a company device, the handbook makes clear that the company can read, access, and monitor all data stored or processed on a company device, and it suspected Iacovacci of stealing company trade secrets. Moreover, the company argues, Iacovacci authorized the company to access the computer when he provided log-in credentials at the time he received the computer for the remote-access application.
This New York federal case is in the early stages, but we’ll be anxious to see which side prevails.
Former employee cleans up with napkin  
A former editor of an Alaska newspaper, Tony Hopfinger, sued newspaper owner Alice Rogoff based on what he claimed was an enforceable contract for $1 million. In 2014, Rogoff handwrote the following on a napkin: “I agree to pay Tony $100K at the end of each calendar year (beginning ’14) for 10 years.” That’s it. The napkin didn’t say what the money was for or if the payments were wages or something else.
Rogoff paid Hopfinger one installment in 2015, but payments stopped after that. Hopfinger sued, alleging that the napkin was a binding written contract committing Rogoff to pay him $1 million as a buyout for his share of the company. Rogoff argued that the napkin was an attempt to commit Hopfinger to a 10-year term of employment to work for the newspaper. Rogoff reasoned that she owed Hopfinger nothing after he moved to Chicago and stopped working for the newspaper in 2015.
The case went to trial in November 2018, and the jury issued a verdict in favor of Hopfinger for $852,752. The jury found that the napkin was not technically a contract, but it was an enforceable promise, nonetheless. The jury also found that the promise was an agreement to buyout Hopfinger’s shares; not to commit him to 10 years of employment as Rogoff argued.
A look ahead
2019 will surely bring another batch of “stranger than fiction” cases in the employment law arena. And, while these cases are interesting to read about, they also contain lessons for employers. It’s notable that two of the cases above deal with employee privacy issues. Given the ever-evolving law on that topic and “bring-your-own-device” issues, these cases will surely be at the top of the watch list in the next year. And, with more and more states passing medical and recreational marijuana laws (including states surrounding Kansas), the interplay between workers’ compensation, workplace safety laws, and workplace injuries where drugs are a contributing factor is another hot topic to monitor.
Stay tuned, and the Kansas Employment Law Blog will continue to update you on the state of these and other important employment law issues.  



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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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