IN THIS ISSUE:

 

   

 

 

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Welcome to our June 2009 edition of our e-newsletter, RESOURCES. We are excited to produce this exciting forum for the communication of issues pertinent and relevant to HR Professionals.

 

We hope you enjoy the newsletter. It can only get better with your input and comments. If you have any articles for inclusion, comments or requests, please email them to Barry Lippold with the subject: "Resources Article" to: blippold@marcison.com.

 

 

 

By: Patrick H. Hicks and Jeanine Navarro. Patrick H. Hicks is the Founding Shareholder of Littler Mendelson’s Las Vegas and Reno offices. He can be reached at phicks@littler.com. Jeanine Navarro is an Associate in Littler Mendelson’s Las Vegas office. She can be reached at jnavarro@littler.com.

 

Court Ruling Demonstrates Risks to Employers of Accessing Employees' Personal E-Mail Accounts

 

In a cautionary tale for all employers, the United States Court of Appeals for the Fourth Circuit recently held in Van Alstyne v. Electronic Scriptorium, 560 F.3d 199 (4th Cir. 2009), that an employer who accessed a former employee's personal e mail account could be held liable for punitive damages and attorneys' fees under the federal Stored Communications Act (SCA), even without proof of any actual damages. Notably, this ruling narrowly construed the available remedies under the SCA by holding that minimum statutory damages of $1,000 per violation can be recovered only with proof of actual damages. By contrast, three federal district courts previously had ruled that statutory damages (in addition to punitive damages and attorneys' fees) can be recovered even without proof of actual damages.

 

Facts of the Van Alstyne Case and the Plaintiff's $400,000 Recovery in the Trial Court

 

Edward Leonard, the president of Electronic Scriptorium Limited (ESL), gained access to the personal e-mail account of Bonnie Van Alstyne, ESL's former Vice President of Marketing, and could not resist the temptation of reviewing Van Alstyne's personal email, especially after Van Alstyne initiated three separate proceedings against ESL alleging employment-related claims. Van Alstyne learned of Leonard's snooping through discovery in a separate lawsuit that ESL had filed against Van Alstyne. In that lawsuit, Leonard ultimately admitted, according to the Fourth Circuit's opinion, that for more than one year after Van Alstyne's termination, he had accessed "Van Alstyne's AOL account at all hours of the day, from home and internet cafes, and from locales as diverse as London, Paris, and Hong Kong." Leonard eventually produced copies of 258 different emails he had downloaded from Van Alstyne's personal AOL account.

 

Van Alstyne promptly sued ESL and Leonard for violating the Stored Communications Act. The SCA criminalizes unauthorized access to "electronic communications" in "electronic storage" at an "electronic communications service." The Act also authorizes a private right of action to recover monetary damages for such conduct. The SCA provides for recovery of" (a) "the actual damages suffered by the plaintiff ... but in no case shall a person entitled to recover less than the sum of $1,000," (b) punitive damages for willful or intentional violations, (c) and attorneys' fees.

 

ESL and Leonard attacked Van Alstyne's SCA claim based on her admission that Leonard's conduct had caused no actual damages. They contended that absent such proof, Van Alstyne could not recover statutory or punitive damages or attorneys' fees. After the district court rejected this argument, a jury returned a verdict in Van Alstyne's favor and against Leonard for $150,000 in compensatory damages and $75,00 in punitive damages and against ESL for $25,000 in compensatory damages and $25,000 in punitive damages. The compensatory damages awards represented a statutory damages award of $1,000 for each SCA violation. The district court awarded nearly $125,000 in attorneys' fees and nearly $11,000 in costs against ESL and Leonard, jointly and severally. The defendants appealed.

 

The Court’s Reversal and Narrow Reading of the Stored Communications Act

 

The Fourth Circuit reversed the trial court, holding that statutory damages are not available under the SCA absent proof of actual damages. The court relied principally on the U.S. Supreme Court's interpretation in Doe v. Chao, 540 U.S. 614 (2004), which evaluated a nearly identical damages provision contained within the Privacy Act, 5 U.S.C. § 522(a). In Doe, the Court held that the phrase "actual damages sustained" — meant that Congress intended to require a plaintiff to prove actual harm. According to the Fourth Circuit, the phrase “actual damages sustained” is not materially different from the SCA’s phrase of "actual damages suffered." Because Van Alstyne had not pleaded or proved actual damages, she, therefore, could not recover statutory damages.

 

Van Alstyne is one of the first circuit court decisions to interpret the SCA's damages provision. Notably, in reaching this conclusion, the Fourth Circuit departed from other decisions reached by district courts in Hawaii, Connecticut, and Illinois that permitted the recovery of statutory damages absent proof of actual damages. Consequently, a circuit split may emerge between courts that hold no proof of actual damages is required to recover statutory damages under the SCA and courts that hold proof of actual damages is a prerequisite to recovering statutory damages.

 

While adopting defendants' position on statutory damages, the Fourth Circuit rejected their contention that punitive damages and attorneys' fees are not recoverable under the SCA absent proof of actual damages. The sole limitation on the recovery of punitive damages, the court held, is a showing that the SCA violation was "willful or intentional." The court read the SCA to authorize an award of attorneys' fees to a successful plaintiff without "any requirement that damages, actual or otherwise, be recovered."

 

Despite the court’s position, the Fourth Circuit nevertheless vacated and remanded the awards of punitive damages and attorneys' fees. The court reasoned that both awards should be re-evaluated "in light of Van Alstyne's lower degree of success." By remanding the question of the proper amount of punitive damages to be awarded Van Alstyne, the Fourth Circuit effectively forced the district court to consider whether punitive damages could be awarded when no actual damages are shown. U.S. Supreme Court jurisprudence imposes a constitutional limitation on punitive damages awards, requiring that they be rationally related to the actual harm suffered.

 

Lessons for Employers

 

Employers can take two main points away from the Van Alstyne case:

 

1. Be Careful How You Gather Evidence

 

When pursuing claims against a former employee, employers should recognize the important distinction, in the eyes of the law, between recovering and reconstructing emails and correspondence from an employer-issued computer or from an employer's own corporate network, on the one hand, and gathering e-mails and information form a thirdparty's server, on the other. Unauthorized collection of evidence from a third-party server almost always will be unlawful. Moreover, Van Alstyne shows that the former employee likely will be able to maintain (and survive summary judgment on) a claim for punitive damages and attorneys' fees under the SCA.

 

But Van Alstyne and the SCA do not prevent an employer from obtaining an employee's relevant web-based e-mail from other sources. The SCA prohibits only he unauthorized access to such e-mails when it is stored on a third party's server. Employers considering pursuing claims against a former employee and who are in the process of gathering evidence against an employee should consult with counsel at an early stage to determine the best method to gather necessary evidence while minimizing potential exposure to liability.

 

2. The SCA Applies to Former Employees Attempting to Access E-Mail Stored on the Employer's Server

 

Just as employers may be exposed to liability when accessing e-mail stored on a thirdparty's server, a former employee may be liable under the SCA for accessing e mail stored on the former employer's server. This situation may arise where an employer does not promptly end a terminated employee's access to the employer's network, or where a coworker has shared his or her user ID and password with the terminated employee. While it may be difficult to show damages flowing directly from the terminated employee's access to the former employer's e-mail system, an employer most likely would be able to show that such access was willful or intentional and, under Van Alstyne, be entitled to recover punitive damages and attorneys' fees.

 

 

 

 

 

Q: How did you hear about SNHRA?

 

I have been a member off and on since the early 80’s.

 

Q: Why did you join SNHRA?

 

Excellent networking group, speakers with topics relative to the time period

 

Q: How has membership with SNHRA improved your job or your business?

 

I have been able to stay abreast of HR issues and changes, and have made very nice friends along the way.

 

Q: What does your company do?

 

Hospitality and Gaming

 

Q: What is your role with your company?

 

I am the Director of Human Resources.

 

Q: What are the most challenging aspects of your job?

 

Displacing employees is always a challenge but furthering the company mission with limited resources is now becoming more of a challenge as well. Finding creative ways to add value to HR programs seems to be where SNHRA helps a lot.

 

Q: What hobbies or interests do you have (outside of work)?

 

Enjoy family time with my nephew that is 9 years old and my niece that is 7 years old. I have also participated in church choir for nearly 20 years.

 

Q: What do you do to unwind from the stressful work week?

 

To unwind from a stressful work week enjoy going to the gym, spending time with family or going to movies.

 

Q: What are some of your favorite restaurants in the Valley?

 

I enjoy several restaurants but a few of my favorites are Mon Ami Gabi, Don Antonio’s, and the Cheesecake Factory.

 

Q: Do you have a famous (or not-so-famous) quote or saying you'd like to share?

 

“It is better to be silent and be thought a fool, than to speak and remove all doubt.”

 - Abraham Lincoln

 

 

 

 

SNHRA Awarded the 2008 Superior Merit Award

 

SHRM is proud to announce that the Southern Nevada Human Resources Association has been awarded the 2008 Superior Merit Award.

 

This award recognizes excellence in chapter operations and a commitment to providing meaningful programs and services to your members.

 

"This recognition demonstrates both the leadership and the successful partnership the chapter has with SHRM to serve the networking and professional development needs of human resource professionals and to the advancement of the human resources profession” noted Pamela J. Green, SPHR, Chief Membership Officer for SHRM.

 

We want to thank all of our members and board of directors because without them this award would have not been possible..

 

 

 

 

 SNHRA attended the Employee Services Management (ESM) Vendor Fair that took place on May 20th at the Cashman Center Stadium. SNHRA welcomed many of the members of ESM who were not members of SNHRA to join and enjoy the additional benefits and professional development that our SuperStar Chapter provides.

 

The ESM Expo presented a great deal of sponsorship and membership opportunities to SNHRA, but we had fun as well: Sea World brought in a few animals including an armadillo, a parrot and a lemur!

 

ESM is a non-profit organization that focuses on providing HR Professionals with resources for Employee Benefits, Wellness, Employee Discount Programs and more. Visit ESM's website at www.esmassociation.org.

 

 

 

Dana Hollern, Territory Coordinator & Proud Member of SNHRA and SHRM
Phone (702) 468-7900 dana_hollern@msn.com, www.colonial-benefits.com

 

The Value of Benefits Communication

Even though employers are offering more benefits than ever, employees may not understand those benefits or appreciate the value of their benefits package. The good news? Benefits education sharpens employees’ understanding and appreciation of the value of their employer-provided benefits.

 

The 2008 SHRM Employee Benefits Survey found that benefits are the second most important job satisfaction factor for employees, after job security. Colonial Life, a sponsor of the SHRM Benefits Survey, can help you design a flexible employee benefits package that fits the needs of your business as well as your employees. Flexible Benefit programs enable you to build a more loyal and satisfied workforce, and ultimately, a stronger business.

 

As counselors for your employees’ benefits needs, Colonial Life Representative(s) can come to your worksite and spend one-to-one time with each employee to provide simple, straightforward advice about the benefits they have — and those they need to fit their individual lifestyles and budgets.


Please visit the following link to learn more about Colonial Life, a SHRM and SNHRA.org Sponsor:

Click here to read on about what Colonial Life can do for you, without any direct cost.

 

Dana is available to answer your questions at 702-468-7900.

 

 

 


How to Maintain a Healthy Level of Insanity in the Workplace

 

1. Page yourself over the intercom. Don't disguise your voice.

 

2. Send e-mails to the rest of the company telling them exactly what you're doing. For example: "If anyone needs me, I'll be in the bathroom."

 

3. Every time someone asks you to do something, anything, ask them if they want fries with that.

 

4. Put your trash can on your desk. Label it "IN."

 

5. Make up nicknames for all your coworkers and refer to them only by these names. "That's a good point, Spike." "No, I'm sorry, but I'm going to have to disagree with you there, Sparky."

 

6. High-light your shoes. Tell people you haven't lost them as much since you did this.

 

7. While sitting at your desk, soak your fingers in Palmolive liquid. Call everyone Madge.

 

8. Hang mosquito netting around your cubicle. When you emerge to get coffee or a printout or whatever, slap yourself randomly the whole way.

 

9. Put a chair facing a printer. Sit there all day and tell people you're waiting for your document.

 

10. Send e-mail back and forth to yourself engaging yourself in an intellectual debate. Forward the mail to a co-worker and ask her to settle the disagreement.

 

11. Encourage your colleagues to join you in a little synchronized chair-dancing.

 

12. Feign an unnatural and hysterical fear of staplers.

 

13. Send e-mail messages saying there's free pizza or donuts or cake in the lunchroom. When people drift back to work complaining that they found none, lean back, pat your stomach and say, "Oh, you've got to be faster than that."

 

14. Put decaf in the coffeemaker for three weeks. Once everyone has withdrawn from caffeine addiction, switch to espresso.

 

15. Find out where your boss shops and buy exactly the same outfits. Wear them one day after you boss does. (This is especially effective if your boss is of a different gender than you.)

 

 

 

Courtesy of http://humorvault.tripod.com/office.html

 

 

 

 

 

 

 

We hope that all of our Members and Friends find the articles contained within R E S O U R C E S  useful in your HR environment.
Many thanks to all of you who responded to our requests
for articles and research for this newsletter.

If you have anything you wish to contribute to the next issue, please do not hesitate to email Barry Lippold at blippold@marcison.com.

 

 

 

Contact Barry Lippold at 702-281-6528 for pricing and availability
to sponsor future R E S O U R C E S editions

 

 

 

 

 

 

 

 

 


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Newsletter: 2009 Edition 6