August 2017 Legal Report

Strategic Security
Legal Report: Negligence, Compensation, Background Checks, and More
 

​Judicial Decisions

NEGLIGENCE. An employer can be sued for negligence by an employee who is injured on the job when the injuries are the result of a dispute that began outside the workplace, a Louisiana appellate court ruled.

Towana Carr was injured at Sanderson Farms, Inc., when her coworker—Kevin Webb—struck her with a piece of equipment called a pallet jack. Webb, according to the lawsuit, allegedly used the pallet jack to knock Carr into a wall and struck her a second time after she said something to him.

Carr filed suit against Webb and Sanderson Farms, seeking recovery for her injuries. She alleged that before the incident, Webb threatened her with bodily harm when they were not at work. 

Carr said she reported Webb’s threats to her supervisor, but was told nothing could be done because the threats were not made on Sanderson Farms’ property. In the lawsuit, Carr claimed that the “accident and the damages and injuries resulting [from the incident] were caused solely by the negligence of Sanderson Farms” for “failing to heed the warning [Carr] gave about Webb’s threat” and for “failing to take any steps to prevent Webb from injuring” her.

Sanderson Farms, however, argued that Carr did not have a claim because it was prohibited under the Louisiana Workers’ Compensation Act, which prevents an employee who is injured by a negligent act at work from making a worker’s compensation claim and suing his or her employer.

The trial court agreed with Sanderson Farms and dismissed the case. Carr appealed the dismissal to the Louisiana Court of Appeal for the First Circuit, which sided with her and found that she could sue Sanderson Farms for negligence.

The appellate court said that “although negligence claims by an employee against her employer for injuries sustained on the job are typically barred by the exclusivity provision of the workers’ compensation act, the act does not cover injuries arising out of a ‘dispute with another person or employee over matters unrelated to the injured employee’s employment.’”

The appellate court also concluded that Carr had a cause of action to sue Sanderson Farms and that she had a valid cause for relief. “If an employer knows or should know of a dangerous condition or person on his premises, the employer is obligated to take reasonable steps to protect its employees,” the court wrote. (Carr v. Sanderson Farms, Inc., State of Louisiana Court of Appeal for the First Circuit, No. 2015-ca-0953, 2017)

COMPENSATION. Men can be paid more than women for the same work based on salary histories, a U.S. federal appeals court recently ruled. 

“If prior salary alone is responsible for the disparity, requiring an employer to consider factors in addition to prior salary cannot resolve the problem that the [U.S. Equal Employment Opportunity Commission] and the plaintiff have identified,” wrote Judge Lynn S. Adelman in the opinion for the court.

The ruling stems from a case brought by Aileen Rizo, who was hired as a consultant for Fresno County California Schools in 2009 for an annual salary of $62,733—roughly $10,000 more per year than her previous job. 

Three years later, Rizo learned that a man was hired for the same position but paid $79,000 per year, and that all other consultants in the same position—who were male—were paid more than she was. Rizo complained to the county about the disparity, but was told that all salaries were set under a standard operating procedure that took salary history into account.

Rizo then filed suit against the Fresno County superintendent under the U.S. Equal Pay Act. The county moved to have the case dismissed, claiming that while Rizo’s salary was less than her male colleagues’ it was based on a “factor other than sex,” according to court documents.

The district court, however, denied the county’s request and found that under the act, “prior salary alone can never qualify as a factor other than sex, reasoning that ‘a pay structure based exclusively on prior wages is so inherently fraught with risk that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand, even if motivated by a legitimate non-discriminatory business purpose,’” the court said.

The district court referred the case to the U.S. Court of Appeals for the Ninth Circuit. Rizo—with support from the U.S. Equal Employment Opportunity Commission—argued that prior salary alone cannot be a factor other than sex.

This is because “when an employer sets pay by considering only its employees’ prior salaries, it perpetuates existing pay disparities and thus undermines the purpose of the Equal Pay Act,” according to court documents. 

The appeals court, however, did not find this argument persuasive and reversed the lower court’s ruling. As an example, the court explained a situation where a male and female employee have the same education and years of experience, but the male employee was paid a higher prior salary than the female employee in his previous position. Their current employer sets salary by considering education, years of experience, and prior salary.

“Using these factors, the employer gives both employees the same salary credit for their identical education and experience, but the employer pays the male employee a higher salary than the female employee because of his higher prior salary,” Adelman wrote. “In this example, it is prior salary alone that accounts for the pay differential, even though the employer pays the male employee a higher salary than the female employee because of his higher prior salary.”

While the appeals court reversed the lower court’s ruling, it also remanded the district court’s ruling to have it reconsider the business reasons the county offered for its standard operating procedures for setting employee salaries. (Rizo v. Yovino, U.S. Court of Appeals for the Ninth Circuit, No. 16-15372, 2017)​

Regulations

​BACKGROUND CHECKS. The U.S. Federal Trade Commission (FTC) issued new advice for employers conducting background checks on prospective employees.

The guidance, published on the FTC’s blog, stresses keeping disclosures to prospective employees about background checks—which is required under U.S. law—simple by using easy to understand language. 

The guidance recommends that employers avoid legal jargon, extra acknowledgements or waivers, certifications that all information in the job applications is accurate, using wording that purports to require the prospective employee to acknowledge that hiring decisions are based on legitimate nondiscriminatory reasons, and authorizations that permit the release of information that federal law doesn’t allow to be included in a background screening report, such as bankruptcies that are more than 10 years old.

This information “makes it harder for the prospective employee to understand the main purpose of the document,” and may be a violation of federal law, wrote David Lincicum, an FTC staff attorney. 

CYBERSECURITY. U.S. President Donald Trump signed an executive order that aims to strengthen U.S. government networks and critical infrastructure.

The executive order is broken into three parts—securing U.S. government networks, enhancing critical infrastructure cybersecurity, and improving the nation’s cybersecurity. 

A key element of the executive order is looking at the U.S. government’s cybersecurity as a whole—not as 190 separate agencies—and requiring all federal agencies and departments to implement the National Institute of Standards and Technology Cybersecurity Framework, explained Tom Bossert, White House homeland security advisor.

“We need to look at the federal government as an enterprise, so that we no longer look at the Office of Personnel Management (OPM) and think, ‘Well, you can defend your OPM network with the money commensurate for the OPM responsibility,’” Bossert said. “OPM, as you know, had the crown jewel, so to speak, of our information and all of our background and security clearances.”

U.S. LEGISLATION

Texas: SANCTUARY CITIES. Texas Governor Greg Abbott signed into law legislation that bans sanctuary cities, effectively making it a crime for police and sheriff departments to not cooperate with U.S. immigration enforcement.

Citizens expect law enforcement officers to enforce the law, and citizens deserve law breakers to face legal consequences,” Abbott said in a statement. “Texans expect us to keep them safe, and that is exactly what we are going to do.”

The law (formerly S.B. 4) requires cities, counties, and universities with their own law enforcement agencies to comply with federal immigration detainers, or face fines of up to $25,000 a day. It also allows the state to remove public officials from office who violate the law.

The law’s critics—including the Texas Major Cities Chiefs and the Texas Police Chiefs Association—claim, however, that it will adversely impact public safety and sow mistrust in immigrant communities.

West Virginia: DRUG TESTING. West Virginia enacted legislation that clarifies when employers can conduct workplace drug and alcohol testing.

To conduct testing under the West Virginia Safer Workplace Act, employers must distribute a written policy on testing to all employees. Employers may then conduct testing for employment-related reasons, including deterrence and detection of illegal drug use, alcohol abuse, or prescription drug abuse; impairment, accident, and misconduct investigations; and safety and productivity maintenance.

Testing also must take place during—or immediately before or after—work hours, and employees must be compensated for the time it takes to conduct the test. Employers also must cover the cost of testing and follow guidelines in the law for the testing process.

If an employee tests positive, employers can take disciplinary actions, including against “sensitive” employees—employees in a position where an accident could cause death, serious bodily injury, or property or environmental damage. ​

Elsewhere in the Courts

RETALIATION

The American Dental Association will pay $1.95 million to resolve charges of retaliation discrimination based on an investigation by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC claimed that the association’s former chief legal counsel and director of human resources were fired in retaliation for complaining to board members about potential violations of federal anti-discrimination laws. The association denies that it engaged in unlawful conduct, and issued an apology to the two former employees. ​

DAMAGES

Companies can recover damages from employees who hack into their systems to access proprietary information without authorization, a U.S. federal court ruled. As a result of the ruling, a former patrol officer will pay a security company $318,661.70 in actual damages for hacking into the corporate payroll system to inflate his hours and claiming a competitor took confidential information from the company. His actions, the court said, violated the U.S. Computer Fraud Abuse Act, the U.S. Stored Communications Act, the California Computer Data Access and Fraud Act, and the California Uniform Trade Secrets Act. (Tyan, Inc. v. Yovan Garcia, U.S. District Court for the Central District of California, No. CV 15-05443-MWF, 2017)

CORRUPTION

The former minister of mines and geology for the Republic of Guinea was convicted for his role in a scheme to launder bribes paid to him by executives from China Sonangol International and China International Fund. Mahmoud Thiam, 50, of New York, was convicted of one count of transacting in criminally derived property and one count of money laundering for participating in a scheme where the two organizations paid him $8.5 million for mining rights in Guinea; he transferred roughly $3.9 million of that to the United States to pay for luxury goods and other expenses. “To conceal the bribe payments, Thiam falsely claimed to banks in Hong Kong and the United States that he was employed as a consultant and that the money was income from the sale of land which he earned before he was a minister,” according to the U.S. Department of Justice. (U.S. v. Thiam, U.S. District Court for the Southern District of New York, No. 1:17-cr-00047-DLC, 2017)