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FMG Law Blog Line

Archive for November, 2013

Life, Liberty, and the Pursuit of Misdemeanors

Posted on: November 7th, 2013

By: Ali Sabzevari

Generally in situations where an officer is truly in “hot pursuit” and the underlying offense is a felony, the Fourth Amendment usually yields to the officer’s interest in apprehending the fleeing suspect.

What about situations where the underlying offense is only a misdemeanor?

The Supreme Court of the United States in Stanton v. Sims, 12-1217, 2013 WL 5878007 (U.S. Nov. 4, 2013) seems to make clear that the Fourth Amendment also yields to an officer’s interest in apprehending a fleeing suspect where there is probable cause to arrest for a misdemeanor.

The officer in Stanton made a warrantless entry into a fenced yard of a home in hot pursuit of a man suspected of a misdemeanor offense.  The Supreme Court held, for purposes of determining whether the officer is entitled to qualified immunity, that the law was not clearly established that a warrantless entry into a home in hot pursuit of a suspect who the officer has probable cause to arrest for a misdemeanor violated the Fourth Amendment.

The Supreme Court has given government officials a little more “breathing room” to make their split-second decisions in the dangerous and unpredictable field of law enforcement.

U.S. Senate May Pass Legislation That Would Prohibit Employment Discrimination On The Basis Of Sexual Orientation And Gender Identity

Posted on: November 6th, 2013

By: Bill Buechner

Democrats in Congress are making a strong push to pass the Employment Non-Discrimination Act (“ENDA”), which would prohibit employment discrimination on the basis of sexual orientation and gender identity.   ENDA was introduced in the Senate as S.815 on April 25, 2013.   Last week, the Senate Majority Leader, Harry Reid (D-Nev) announced that he would bring the legislation to the Senate floor this week.   ENDA passed its first procedural hurdle earlier this week, and it appears that ENDA supporters may have enough votes to defeat a Republican filibuster in the Senate.  ENDA’s prospects for passage in the Republican controlled House of Representatives, however, are uncertain.

Proponents have attempted to pass various versions of ENDA on several occasions in the past.  The last serious effort to pass ENDA took place in 2007.

ENDA would prohibit employment discrimination because of an individual’s “actual or perceived” sexual orientation or gender entity.  (Sec. 4(a)(1)).  ENDA also would prohibit employment discrimination based on the “actual or perceived sexual orientation or gender identity of a person with whom the individual associates or has associated.” (Sec. 4(e)).  Sexual orientation is defined as “homosexuality, heterosexuality, or bisexuality.” (Sec. 3(a)(10)).

Gender identify is defined as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”  (Sec. 3(a)(7)).   ENDA contains an exemption for religious organizations that are exempt from the religious discrimination provisions of Title VII. (Sec. 6).  ENDA also contains an anti-retaliation provision that is narrower than previous versions.  (Sec. 5).

With respect to the gender identity provisions, ENDA would permit employers to require employees to adhere to reasonable dress or grooming standards, but only if the employer “permits any employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that the employee has undergone or is undergoing gender transition after time of employment, to adhere to the same dress or grooming standards as apply for the gender to which the employee has transitioned or is transitioning.” (Sec. 8(a)).

Unlike previous versions of ENDA, the current version under consideration by the Senate would not require the construction of new or additional facilities. (Sec. 8(b)).   ENDA contains essentially the same enforcement mechanisms as Title VII.  An individual asserting a violation of ENDA would be entitled to the same remedies as a Title VII plaintiff (Sec. 10(a-b)), except that it would not permit recovery under the theory of disparate impact. (Sec. 4(g)).

The legislation provides that (like Title VII) a violation would be established if the employee demonstrates that sexual orientation or gender identity was “a motivating factor” in the employment decision at issue. (Sec. 4(h)).   The text of S. 815 can be viewed here.

Cyber Liability Lessons from Edward Snowden

Posted on: November 5th, 2013

By: Jonathan Kandel  

Edward Snowden has been the “gift that keeps on giving” for the U.S. Government.  Snowden, a former contractor employee for the NSA (National Security Agency), began leaking highly classified documents related to the NSA’s methods of intelligence gathering.  Most recently, Snowden disclosed that the NSA “spied” on several close allies, including German Chancellor, Angela Merkel.  Like his previous disclosures, Snowden’s newest information has created a public relations nightmare for the U.S. Government.

So what does this have to do with cyber liability?  At this point, most companies are aware of the potential legal risks associated with a data breach.  If you are not, please read our previous posts on the subject: Data Breach Liability – Are You Prepared? Data Breach Rising Liability Concern For Businesses October is Cybersecurity Awareness Month.  To reduce the legal risks, many companies have purchased cyber liability insurance.

Edward Snowden is a good reminder of one of the largest factors affecting a company’s cyber risk – employees.  According to a 2012 global information security survey, incidents of employees losing data rose by 25 percent last year.  Most often, these incidents are the result of well-intentioned, but careless employees.  That said, cases involving employees intentionally disclosing or using data inappropriately are all too common as well.  Fortunately, there are fairly easy ways to reduce both kinds of risk.  First, make security compliance as easy as possible for employees.  For example, automatically encrypt all company data that employees access on their mobile devices.  Second, implement or update your confidentiality agreements.  Two years ago, Georgia expanded the enforceability of confidentiality agreements and other restrictive covenants.  If your company has not updated its agreements in the last year or two, now is a good time to consider revising them.  The beginning of the year is always a good time to have employees sign updated agreements.

The Snowden saga is also a great example of the non-legal risks associated data breaches.  Anyone who has watched the news over the past few months has seen the collateral damage the U.S. Government has incurred from the Snowden leaks.  While the majority of private companies do not risk being exposed for conducting espionage, there is no question that a data breach can create a public relations nightmare for a company.  Data breaches carry risks of reputation damage as well as lost customers and partnerships.

Obviously the risks vary by industry and company.  As such, one size does not fit all.  That said, every company should regularly discuss data security, the potential risks, and the most appropriate precautionary measures.

E-Verify: DHS Issues Guidance For Gap In E-Verify Service During Shutdown

Posted on: November 5th, 2013

By: Kelly Eisenlohr-Moul

E-Verify is up and running after the government shutdown, leaving many employers questioning how to handle events which occurred during the shutdown.  During that period, E-Verify users were unable to access their accounts, verify employment authorization, or address pending tentative non-confirmations.  The Department of Homeland Security (DHS) recently published guidelines addressing these and other common questions resulting from the shutdown.

Verification of New Hires: Typically, employers are given only three days from the date of hire to initiate a case in E-Verify. Due to the government shutdown, however, DHS has announced that employers will have until November 5, 2013 to create new E-Verify cases for any employees hired during the shutdown.

If E-Verify software requests an explanation for the delay in initiating a case, DHS has instructed employers to choose the “other” option from the drop-down list and enter “federal government shutdown” in the text field.

Tentative Non-Confirmations (TNCs): DHS also has instructed employers to add twelve (12) federal business days to the date printed on any TNC referral letter generated for employees who received a TNC between September 17, 2013 and September 30, 2013. Employees with TNCs generated during this timeframe will have until the new deadline to resolve their cases with the applicable agency.

In or to assist employees who indicated their desire to contest a TNC during the shutdown period, DHS has instructed employers to initiate the TNC referral process in E-Verify.

Final Non-Confirmations (FNCs): To address the issue of employees who received an FNC or no-show because of the government shutdown, employers are advised to close the case and select one of the following two options in E-Verify:

(1) “The employee continues to work for the employer after receiving a Final Non-Confirmation result,” or
(2) “The employee continues to work for the employer after receiving a No Show result.”

The employer should then enter a new case in E-Verify for that individual employee in order to re-initiate the TNC process, which will allow the employee an opportunity to go back and timely contest the original TNC result that led to a final non-confirmation.
Federal Contractors: DHS has advised federal contractors that missed E-Verify deadlines because of the government shutdown to follow the instructions above for resolving any outstanding E-Verify issues, and to communicate with their contracting officers regarding these instructions and any steps being taken to resolve the missed deadlines

Suing a Medical Journal for Lost Medical Malpractice Cases: 1st Circuit Says No

Posted on: November 4th, 2013

By: Michael Eshman

In what the court called an “imaginative but unpersuasive” theory of liability, the 1st Circuit U.S. Court of Appeals rejected a claim brought by unsuccessful medical malpractice plaintiffs against the authors, authors’ employer, and publisher of an allegedly fraudulent case report.  The case report at issue was Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia, which appeared in the March 2008 issue of the American Journal of Obstetrics and Gynecology.  The plaintiffs claimed that the juries’ reliance on the case report in their medical malpractice cases crippled their allegations of brachial plexus injuries caused by excessive physician traction during delivery.  The court rejected the claim on a plausibility inquiry, finding that even if the report had been fraudulent, the plaintiffs could not plausibly prove that the report caused their losses because they could not prove that the case report was critical to the juries’ verdicts.  While acknowledging that these allegations taken together indicated that the plaintiffs had more than a gambler’s chance of proving fraud, the court ultimately did not address the report itself or the medicine behind the report.  The court noted that the Daubert doctrine for the admissibility of scientific and technical evidence presents the appropriate opportunity to raise concerns about the case report.

The case is A.G. and K.S. v. Elsevier, Inc., et. al., 2013 WL5630077 (1st Cir. October 16, 2013).