Employment and the Computer Fraud and Abuse Act

Employment and the Computer Fraud and Abuse Act

If you are lucky, you will go through your entire life without knowing what the Computer Fraud and Abuse Act (“CFAA”) is or how it applies to employment law.

In recent years, the issue of what types of claims exist against an employee who left (or got fired from) a job and either took or retained company documents or electronically stored information of their former employer has become quite a hot-button issue. Some aggressive employers sued former employees under the CFAA if they learned that an employee still possessed confidential information obtained from a company computer. They argued that the employee accessed a company computer without authorization to obtain information violated the CFAA.

The CFAA creates a civil remedy where a party can sue for damages if a person intentionally accessed a computer without authority and obtained data from that computer that caused a loss. Besides civil damages and attorneys’ fees, this statute also has criminal penalties.

Companies would sue a former employee who had obtained data from a company computer system while employed but who then kept that data to assist the employee in his or her lawsuit. The companies argue that the use of the information was not authorized and violated the CFAA. The companies then sue for damages and attorney’s fees. Because the statute authorized statutory penalties and attorneys’ fees, a violation could subject the former employee to a large liability.

Earlier this year, however, the Supreme Court finally ruled on a criminal case involving the CFAA. However, this opinion impacts employment law. The issue in Van Buren v. United States was whether a police officer violated the CFAA to log into a law-enforcement database. The police officer used valid credentials to log into the database, but he did so for non-law enforcement purposes. He violated his department’s policies. But did he violate the CFAA?

According to the Supreme Court, no. The CFAA makes it illegal for a person to obtain information from a computer system without authorization. However, the CFAA does not make it illegal for someone—who may have improper motives—to access a computer system to obtain information otherwise available to that person. So, if you are authorized to access a computer system, you do not violate the CFAA when you do so—even if you are doing it for an improper reason.

In the employment context, this ruling removes a weapon from a company’s arsenal. A company can no longer sue an employee for allegedly violating the CFAA if the employee legally obtained company information by accessing a computer system while the employee still had the authorization to do so.

Now, if the employee accesses parts of the computer system that the employee does not have the authorization to access, then the answer is different. The employee could face CFAA liability for that. However, if an employee gets information from a computer system while the employee has authority to access that system, then the employee no longer faces the risk of a CFAA claim.

Again, in a perfect world, few employees will ever know what the CFAA is and how it might affect their employment. However, this ruling protects employees who gather information while working for a company that might support a future claim against the company. So long as the employee had the authority to access the computer system, the employee should not be accused of violating the CFAA.

This Supreme Court ruling takes one possible risk off of employees who want to sue a former employer.  

What Sayeth The Jury?

What Sayeth The Jury?

A little more than a year ago, jury trials screeched to a halt with the onset of the COVID-19 pandemic.  Over the year, courts across the country grappled with when and how to hold jury trials again.  Some courts held trials by Zoom.  Other courts continued to hold jury trials in person while using a variety of safeguards to protect the jurors and parties.

Now that more courts are opening up, everyone is curious to see what impact the pandemic has had on juries and how they view cases.

Jurors are speaking—and they are speaking loudly with their verdicts.

In recent months, in four employment trials, jurors have hit employers with eye-popping seven figure verdicts.

These verdicts include:

  • $6.85 million jury verdict against FedEx Freight in Seattle for disability discrimination and retaliation.
  • A $3 million jury verdict for disability discrimination against Union Pacific Railroad Coat in Idaho.
  • A more than $2 million jury verdict to a Burger King employee in a disability discrimination case.
  • A $4 million jury verdict in a sex discrimination case in Dallas, Texas.

What is the reason for these recent seven figure jury verdicts in employment cases?  No one knows. 

However, what is interesting is that three all involved disabled workers.  It is possible that the pandemic has driven home just how important it is for every person –even those with disabilities—to have the right to work and to support their families. 

Juries seems to have lost patience with employers who won’t allow people who want to work the opportunity to work. 

This is not the final word on these cases.  Most of these cases will likely be appealed.  And, in most of these cases, statutory damages caps will reduce the awards.

For example, in the FedEx case in Seattle, the jury verdict awarded about $5 million in punitive damages.  However, because those damages were subject to a statutory cap of $300,000, those damages were reduced by the court.

In each case, the prevailing plaintiff can seek attorney’s fees and those fees will likely add substantial amounts to the verdicts.  In the FedEx case, the court awarded attorney’s fees and costs of $1.1 million to the winning plaintiff’s lawyer.

We don’t know what is causing this trend of very significant verdicts in the employment cases that have gone to trial in recent months.  However, jurors are sending employers a message.

Whether employers receive the message remains to be seen.

Barriers to Justice

Barriers to Justice

One of the hardest parts of my job is explaining to people that not every wrong has a remedy. Sometimes, the law does not give us a remedy for even truly egregious conduct.  Sometimes, the courts erected barriers to getting justice.

Justice Carlton Reeves of Mississippi wrote a groundbreaking opinion taking to task the role courts play in inventing “legal requirements that are untethered to the complexity of the real world.”  This case is Jamison v. McClendon. This long, but well worth reading, opinion can be found at: https://bit.ly/34a8Bc4

Justice Reeves had to rule that an African American man subjected to two-hour, life-altering pretextual traffic stop had no claim against the police officer who stopped him because of what Justice Reeves calls an “invented legal doctrine” called “qualified immunity.” This doctrine effectively protects law enforcement officers from facing real consequences for wrongdoing.

As Justice Reeves said, “this has to stop.” 

Mr. Jamison purchased a new car in Arizona and was driving home to South Carolina.  In Mississippi, he was pulled over by a police officer who claimed the paper tag had “folded over” to where he could not see it. Mr. Jamison provided his license, insurance paperwork, and car bill of sale. The police officer’s check of Mr. Jamison’s license came back clear. Yet, the police officer put his hand in the car and five times asked to search the vehicle. He lied to Mr. Jamison, saying he had gotten a call indicating that there were 10 kilos of cocaine in the car.  Finally, after a heated conversation, Mr. Jamison got frustrated and capitulated. He then had to stand in front of the car for hours while the police officer searched every inch of the car, even tearing up the upholstery.  Of course, the police officer found nothing. 

Mr. Jamison sued, arguing this his Fourth Amendment right were violated by the officer’s acts in “falsely stopping him, searching his car and detaining him.” In addressing the issue of whether Mr. Jamison’s consent to the search was coerced, Justice Reeves noted the reality of Mr. Jamison’s African American race could not be ignored in Pelahatchie.

Pelahatchie is just one hour south of Philadelphia, Mississippi, a town made infamous for three lynchings in 1964.  In 2011, less than 30 minutes from where Mr. Jamison was, a handful of people murdered a Black, gay man, and the murderers were from Pelahatchie.  As Justice Reeves noted, “For Black people, this isn’t mere history.  It’s the present.” He pointed out the legitimate fear of African Americans during any traffic stop.

Despite his clear dismay at this outcome, Justice Reeves was compelled to follow the law.  Unfortunately, the current status of the case law on qualified immunity compelled Justice Reeves to dismiss Mr. Jamison’s claim.

Justice Reeves showed real current in calling out judges for their role in creating barriers to justice.

Justice Reeves explained how judges err when they impermissibly substitute a jury determination with their own.  Justice Reeves explained how judges err again when they “invent legal requirements that are untethered to the complexity of the real world.”  He traced the history of how courts added “one judge-made barrier after another” in various kinds of cases and demonstrated how those “judge-made barriers” operate to distract from the real point:  determining if unlawful discrimination occurred.

Justice Reeves ruled as he had to under the law.  Then, he closed with these powerful words:  “Let us waste no time in righting this wrong.”

Too many employment discrimination cases face “judge-made” barriers that prevent a plaintiff from being able to prove discrimination.  These “legal requirements” are frustrating and often untethered to the real world.

An example of one such “judge-made” requirement is that a plaintiff in an employment discrimination case must have someone “nearly identical” to compare himself or herself to.  The courts interpret this to a ridiculous granular level.  One good example is an African American man who lost his discrimination case.  He was fired for allegedly stealing from the company. He claimed discrimination because a white co-worker had also allegedly stolen from the company but not gotten fired.  The court said the white co-worker was not “similarly situated” to him because the white man had allegedly stolen from the company’s customer—not the company. Thus, they were not “nearly identical.” Yet, in the real world, is stealing from a customer better? Either way, both were accused of stealing, and one was fired, and one was not.  That should be disparate treatment under the law.

Another example of a judicial barrier to justice arises in hostile work environment claims.  A plaintiff must show that he or she was subject to “severe or pervasive” conduct that has the effect of substantially altering work conditions.  Yet, courts tolerate remarkable levels of abuse before recognizing that it might arise to the level of being “severe or pervasive.”

I once heard a federal judge say that he was not sure that an African American man who had been called the “n” word three times and had a noose hung in his locker could meet the legal standard to show “severe or pervasive” treatment for his hostile work environment claim. If that was not enough, what would be?

At this time and in the wake of the George Floyd killing and the awakening our nation is undergoing, it is time for courts to wake up and do away with these legal requirements that are untethered to the real world.  It is time to remove these barriers to justice.

Justice Reeves said it best:  “Let us waste no time in righting this wrong.”


Cases to Watch in 2020

Cases to Watch in 2020

Cases to Watch in 2020 

Get prepared for some big developments in employment law in 2020.  One key case should answer a longstanding  question about whether Title VII protects a person from discrimination because of sexual orientation.  The other key case may lead to real and systemic change in equal pay.

Sexual Orientation Discrimination 

A trio of cases pending at the United State Supreme Court considers the issue of whether sexual orientation is a protected category under Title VII.  

Title VII outlawed discrimination “because of” sex.  What does that mean?  If a person is gay or lesbian and is discriminated against at work, is that “because of” sex?  In the past, most courts said no— sexual orientation was not protected under Title VII.  So, an employee fired for being gay or lesbian had no legal claim he or she could pursue. 

In recent years, some cases eroded those legal holdings. And, last year, 3 of those cases went to the Supreme Court.  Now, the Supreme Court will make the final decision on this issue.  We should get an opinion out of the Supreme Court on this issue before the end of June.

Right now, there really is no way to predict which way the court will go on this issue.  However, if the Court finds that sexual orientation is not protected under Title VII, the next stop in this legal battle will likely be Congress. If the Supreme Court finds that sexual orientation is not covered by the law, it is likely that Congress will be lobbied to change the law.

Equal Pay  

In 2019, the USA women’s soccer team cleaned up at the World Cup.  Notwithstanding their stellar success, the women were still paid significantly less than the far less successful male soccer team.  In a case that has gotten much publicity, the women sued for pay discrimination.  The women brought claims under both Title VII and the Equal Pay Act for the pay difference. 

In November, the women got a big victory when the court certified the lawsuit as a class action for the Title VII claim.  The lawsuit also got certified as a “collective action” on the Equal Pay Claim.  This was vigorously opposed, so getting this relief from the court is a big win for the women’s team members. 

And, the court set this case for trial in May 2020.  That means that we do not have to wait too long to see whether this case will actually go to trial or whether the parties reach some agreement. 

This case has been so important because the publicity it received has really stirred a dialog about equal pay issues and caused many people to start actively thinking about pay discrimination.  No matter what happens with the women’s soccer team, that conversation is certainly going to continue.

Stay Tuned!