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Archive for the ‘Employment Law Blog – KY’ Category

The Sixth Circuit Takes A Narrow Construction Of The Computer Fraud And Abuse Act And Sides With Employees

Posted on: September 18th, 2020

By: Caitlin Tubbesing and Barry Miller

The Computer Fraud And Abuse Act (CFAA) is a federal law that provides it is a violation for an individual to “intentionally access a computer without authorization or exceed authorized access” to get protected information.  Employers have attempted to rely upon the CFAA for years to pursue former employees who stole (or destroyed) confidential information from the employer’s computer system prior to leaving for a competitor. 

The issue that courts have struggled with is as follows: Does an employee who lawfully accesses his employer’s computer system, but engages in actions with a nefarious intent within the confines of that access violate the Computer Fraud And Abuse Act? That is a lot to chew on, right? Numerous federal courts agree it is a rubbery issue, which is why there are varying decisions by both district and appellate courts across the United States dealing with CFAA claims against former employees.

On September 9, the Sixth Circuit weighed in on this dispute when it held (in Royal Truck & Trailer Sales v. Kraft) that employees who took proprietary information from the network their employer gave them access to prior to departing for a competitor did not violate the Computer Fraud and Abuse Act (“CFAA”). In this case, the Sixth Circuit initially observed that the employees were allowed to access Royal Truck’s system because they still were employees when they did so. So the meatier question for the Sixth Circuit is whether employees exceeded their authorization when they accessed information for an improper purpose.   

The Sixth Circuit answered “no” because  the language of the CFAA required Royal Truck to show that the employees used their permitted access to gain information that they were not entitled to have. The information they acquired—quotes for Royal Truck customers—was information they could have when they were employees. The Sixth Circuit joined the Second, Fourth, and Ninth Circuits in narrowly interpreting the statute in this manner.

The Royal Truck court acknowledged, however, that other circuit courts—the First, Fifth, Seventh, Eighth, and Eleventh—read the statute more broadly, and would likely find the Royal Truck employees liable under the CFAA. The Supreme Court has accepted a criminal case, Van Buren v. United States, to be heard in the October 2020 term. While Van Buren is a criminal case, it still allows the Supreme Court to resolve this conflict in how the statute is interpreted. Until then, employers will have to understand the circuit split when assessing whether to pursue this type of claim against former employees.

If you have questions or would like more information, please contact Caitlin Tubbesing at [email protected] or Barry Miller at [email protected].

Kentucky Federal Court Dismisses Former Employee’s Wrongful Termination Suit Related to Use of CBD Oil

Posted on: June 15th, 2020

By: Curt Graham

As CBD products continue to gain popularity across the country, employers are likely to have questions regarding the scope of their drug testing policies. A recent decision from the United States District Court for the Western District of Kentucky addressed this issue in the context of a wrongful termination claim.

The plaintiff in Amox v. S. Ky. Rural Elec. Coop. Corp., No. 1:18-CV-00120-GNS, 2020 U.S. Dist. LEXIS 56367 (W.D. Ky. Mar. 31, 2020) was terminated after a drug test came back positive for Tetrahydrocannabinol (“THC”). The plaintiff alleged his test was positive only because he had used CBD oil to treat pain and inflammation and he filed a wrongful termination suit against his former employer. Relying on the “public policy” exception to Kentucky’s at-will employment doctrine, the employee claimed public policy in Kentucky establishes an affirmative right to use CBD oil outside of the workplace that cannot be infringed. The basis for his argument was that Kentucky’s legislature had declared hemp to be an “agricultural crop” and that certain CBD products had been removed from the list of controlled substances in Kentucky.

The Court rejected these arguments, finding that none of the cited statutes addressed an employee’s ability to use CBD oil outside of the workplace without consequences and that there was no indication that the Kentucky General Assembly intended to prevent an employer from terminating an employee for failing a drug test stemming from his use of CBD oil. Accordingly, the wrongful termination claims were dismissed on summary judgment. There do not appear to be any reported decisions from other jurisdictions addressing this novel issue, but similar challenges are likely to be asserted relating to the enforcement of workplace drug policies.

If you have questions or would like more information, please contact Curt Graham at [email protected]