Access Personal Information Online For Employment Background Checks

The introduction of the Internet has made it easy to do a world of things. Background investigations on latent personnel are no exception. You could search for details and records about them using their names and social security numbers. If they have a criminal record, even one as small or trivial as a parking ticket, you’d likely find it.

Background check is an investigation and it can be carried out on a potential date. This is necessary in this jet age where people date online. Part of the investigation is the persons past life. There are lots of dating sites that you can access freely if you want to try find if a particular person you are trying to employ in you company have data online. This can help you to find more of his personal information.

You might be surprised what vital info you could unearth from a simple background check, sometimes even without digging too deep. A claimant once declared himself fit for an advertised security job because of a stint in law enforcement. Wish someone would have made it clear from the start which side of law enforcement it was right to be on– he was an ex-con.

Background checking may be controversial in a number of ways. First, there is the question of violation of privacy, then there is fair credit reporting which involves speaking the truth about the findings and using them right. Other challenges are discrimination and identity theft that doesn’t seem to be going anywhere anytime soon. With these, those who seek to employ the best have their hands full dealing with the law, with authorities, and with the would-be employees they are investigating.

References is one of the basic requirement applicants present to their employers in the course of background check. It is a form of attestation from people that the applicant is the rightful owner of the credentials presented. They equally attest to the person’s impeccable character.

With online background check, the major task is putting your name in a search engine. The engine goes through the data available and brings out details about you. You can get information on your place of birth, school attended, criminal records, employment history etc.

Background check is a necessity in this 21st century. It is a search to get details about people’s criminal history. It is equally used to search if someone actually exists.

Free websites most times do not offer in-depth information when conducting background check.

For more information on background checks, visit http://www.backgroundchecks101.info/

Sticking It To The Man: Fighting Back Against Employment Discrimination

If you or someone you know has ever experienced illegal employment discrimination you know how intimidating it can be to fight for your rights. It’s easier to either accept the situation or find a new job than to demand justice. Houston employment attorneys will help you fight that battle and ensure that circumstances improve in your workplace.

There are many reasons and ways people are discriminated against and unfairly mistreated in the workplace. The majority of employment discrimination occurs because of factors the victim has no control over such as race, age or gender, or because an employee chooses to use benefits he or she is legally entitled to such as workmans compensation, family medical leave, or wistleblowing.

In 1964 Congress passed Title IIV of the Civil Rights Act making it illegal for a business to discriminate against any employee for reasons regarding race, color, religion, sex, or national origin. In a perfect world such, discrimination would never take place. In our imperfect world, even the law doesn’t prevent discrimination from happening. Houston employment attorneys are there to protect your rights under Title IIV and other laws.

Houston employment attorneys handle and prosecute cases in areas of employment law, primarily representing individuals in claims against their employers. Some causes for prosecution could be:

Age Discrimination, including claims arising under the Age Discrimination in Employment Act.

Gender Discrimination and Sexual Harassment, including claims for pregnancy discrimination, sex discrimination, sexual harassment and failure to promote or hire under Title VII of the Civil Rights Act of 1964.

Race Discrimination, including claims for racial leave, failure to promote or hire under Title VII of the Civil Rights Act of 1964.

Disability Discrimination, including claims for perceived disability under the Americans with Disabilities Act.

Religious Discrimination, which includes claims based on religious harassment under Title VII of the Civil Rights Act of 1964.

Houston employment attorneys will also prosecute employers for retaliation against an employee including discharging or firing an employee for filing a charge of discrimination.

Houston employment attorneys protect Whistleblowers, which are employees, former employees, or members of an organization, who report misconduct or policy violations to people or entities that have the power to take corrective action, in accordance with the recently created Sarbanes Oxley Act.

Workers Compensation Retaliation Cases arising under the Texas Labor Code provision that renders it illegal for an employer to discriminate against an employee who files a workers compensation claim.

All of these services empower employees, making it easier to stand up for their employment rights. Houston employment attorneys are experienced and informed enough in employment law that they can help you get justice rather than “letting the man keep you down.”

Houston employment attorneys(http://www.rosenberglaw.com/) empower employees, helping them fight for their employment rights. The author Art Gib is a freelance writer.

The Perils of California Employment Law

By Frank E. Melton, Olivia Goodkin and Wendy Lane, Rutter Hobbs & Davidoff Incorporated (www.rutterhobbs.com)

It is difficult to keep track of the various laws affecting employers in all 50 states, but California employers that do not focus on the substantial differences between California law and federal law may incur serious liabilities. Prudent companies with California operations simply cannot have uniform national policies or practices without considering the impact of differences in California law in areas such as wage and hour laws, anti-discrimination laws, and rights to terminate or discipline employees.

This article briefly highlights a few of the more significant differences between California and federal employment law, including recent developments.

More Potent Monetary Remedies under FEHA

Companies with California employees should be aware that the remedies under the California Fair Employment & Housing Act (“FEHA”) are much more potent than under federal laws such as Title VII, the ADA (Americans with Disabilities Act) and the ADEA (Age Discrimination in Employment Act). Unlike federal law, compensatory damages under FEHA (including back pay, front pay and lost benefits) are not subject to caps limiting recovery. There are also no specific limits on emotional distress damages, punitive damages and attorneys’ fees that may be recovered under FEHA. Moreover, under FEHA, individuals may be held personally liable for harassment, including sexual harassment. Under a recent California Supreme Court decision, individual managers or supervisors may no longer be held personally liable for retaliation under FEHA, but retaliation claims remain one of the most dangerous areas of exposure for California employers.

Disability Discrimination

Cases decided under the ADA have significantly limited employer obligations. However, California employers cannot rely on federal law under the ADA in determining what reasonable accommodations, if any, to provide to employees with some type of arguable “disability.” The disability discrimination provisions of California’s FEHA create greater rights for employees than the ADA by more broadly defining what is a protected mental or physical ”disability.” In addition, California employers have a statutory duty under FEHA to engage in an “interactive process” to determine, in a timely and good faith manner, whether effective reasonable accommodations may be made whenever requested by an employee or job applicant with a known disability. Unlike federal law, the duty to engage in the interactive process is separate and independent from the duty to provide reasonable accommodation for a protected disability. Hence, California employers may be held liable for failure to engage promptly in the interactive process, even if there ultimately is no need to provide a reasonable accommodation.

More Rigorous Tests for Exemptions from Overtime Requirements

There are many differences between California wage and hour laws (governed by the California Labor Code and the state’s 17 industry or occupational wage orders) and the

Fair Labor Standards Enforcement Act (“FLSA”), the primary federal law regulating wage and hour issues. Where there is an inconsistency, the law most protective of the employee must be followed.

One area where there is a particularly significant difference between California and federal law is in the exemptions from overtime requirements. For example, the minimum salary generally required under California law to be an exempt employee is considerably higher than that mandated by federal law (at least two times the California minimum wage, which in 2008 requires a salary of $33,280 based on the minimum wage of $8.00 per hour). California law generally requires a rigorous analysis of the employee’s actual duties to determine whether more than 50 percent of the duties fall within the executive, administrative, or professional exemptions, in addition to the $33,280 minimum salary requirement. Federal law, by contrast, frequently leaves more room for employers to find exempt status in permitting non-exempt duties to be performed, so long as they are not “primary” and are “incidental” to the employee’s “primary duties.” In addition, California employers are required to pay daily overtime whenever a non-exempt employee works more than eight hours in a day (and double time after 12 hours in a day), in contrast with the FLSA, which requires overtime only when non-exempt employees work more than 40 hours in a workweek.

There has been a substantial increase in class action wage and hour litigation nationwide under the FLSA and many state laws during this decade. The proliferation of class action wage and hour lawsuits has been even greater under California law due to the especially rigorous rules regarding determination of exempt status and other unusual requirements upon which many employers have not previously focused, such as meal and rest periods. The wave of class action lawsuits has spread during the past year or so from multi-million dollar settlements and verdicts against large national employers to many medium-sized and small California employers, including non-profits.

Rest and Meal Periods

While the FLSA does not require rest periods, California law requires employers to provide compensated rest periods for non-exempt employees who work at least three and one-half hours per day. Rest periods should be in the middle of each work period and must be at least 10 consecutive minutes for each four hour period worked.

In addition, California law prohibits non-exempt employees from working more than five hours without a meal period of 30 minutes or longer, except in certain limited circumstances. Generally speaking, non-exempt employees must be required to take at least the minimum 30-minute meal period, completely uninterrupted, even if employees voluntarily prefer to do otherwise.

The penalties for violating California meal and rest period requirements are severe. Employers owe one additional hour of pay for each meal or rest period violation. Under recent California court decisions, employers are liable for wage penalties relating to violations for a four year period before the lawsuit was filed (the same statute of limitations as applicable to many other wage and hour violations), which has significantly increased exposure for meal and rest period violations.

Penalties for Non-Payment of Wages upon Termination

All wages and vacation accrued through the last day of employment are due immediately upon termination. Thus, employers must have ready the final paycheck, including all accrued wages and vacation — including any unused paid time off (“PTO”) or floating holidays, which are also generally treated like vacation, but not unused sick time — so that it can be received by the employee on the day of termination. For each calendar day that the final paycheck is delayed, even if it is paid at the normal payroll date, the terminated employee may recover a “waiting time” penalty equal to daily wages, for up to a total of 30 calendar days. The same penalty applies where the employer “willfully” (interpreted broadly) fails to pay the full wages due, including overtime or vacation pay, or takes an unlawful setoff against the final paycheck for monies owed by the employee (most such setoffs being unlawful in California).

Liability Based on Unenforceable Covenants Not to Compete

Covenants not to compete are unenforceable in California except in certain circumstances involving the sale of a business. Companies may be liable for tort damages for wrongful termination in violation of public policy if they fire employees who refuse to sign a non-competition covenant that violates California law. There are also serious questions regarding the extent to which out-of-state employers can succeed in enforcing such covenants against former employees located in (or who relocate to) California based upon choice of law provisions in the covenants purporting to make them enforceable under the law of the employer’s home state. Several California decisions have ruled such choice of law provisions to be unenforceable as to California-based employees because they are contrary to the fundamental public policy of the state permitting employees to pursue a livelihood in the field of their choice. However, employers can enforce in California narrowly-tailored non-solicitation covenants and other provisions necessary to protect trade secret information as defined under California ’s version of the Uniform Trade Secrets Act.

Mandatory Arbitration of Employment Claims

Agreements to arbitrate California state law claims such as wrongful termination in violation of public policy or state discrimination claims under FEHA: (1) may not limit the employee’s right to seek the full range of remedies provided by statute, such as punitive damages or attorneys’ fees; (2) must permit the employee to conduct discovery sufficient to vindicate statutory rights, including access to essential documents and witnesses; (3) must require the employer to pay all types of costs unique to arbitration, such as arbitrator’s fees; and (4) must ordinarily require both the employee and employer to arbitrate their claims against each other. In addition, the arbitrator must be neutral and issue a decision at least briefly stating the essential findings and conclusions on which the arbitration award is based. Conditioning continued employment on the execution of an invalid arbitration agreement may support a tort claim for wrongful termination in violation of public policy.

Enhanced Privacy Rights

Private sector employees in California have a right to privacy under the California Constitution, which has been interpreted to impose restrictions on private sector employers somewhat comparable to those imposed on public sector employers by the Fourth Amendment of the United States Constitution. As a result, California courts have significantly limited the rights of employers to engage in random, post-accident and reasonable suspicion drug and alcohol testing. There are also privacy issues raised by company searches or inspections of computers, emails, offices, personal effects and employee vehicles, which make it important for California employers to address these issues in published employee handbooks or policy statements.

Unusual Leave of Absence Requirements

California has a special preg nancy disability law, applicable to businesses with five or more employees (the minimum under FEHA), that requires unpaid leaves for the period of disability certified by a physician up to four months. Larger employers (with 50 or more employees) covered by federal and California family and medical leave laws are required to provide up to 12 workweeks of unpaid “baby-bonding” leave in addition to the up to four months of preg nancy disability leave. California has a unique paid family leave law that technically does not require employers to grant family leave, but leads many California employers to create policies authorizing such leave, even when employees would be ineligible under state/federal family and medical leave laws, because the State pays a portion of the salary for up to six weeks of paid family leave, funded by payroll tax deductions from employee wages.

There is a long list of other special leave of absence and time off requirements under California statutes, including one of the nation’s strictest laws prohibiting retaliation or discrimination against employees who have filed, or made known their intention to file, workers’ compensation claims. This law has been interpreted to require employers to provide leaves of absences and job protection to injured workers, even in cases where the leaves of absence go beyond 12 workweeks of family and medical leave, company policy or the terms of collective bargaining agreements.

Terminating Employees for Use of Medicinal Marijuana

In 1996, Californians passed an initiative, the Compassionate Use Act, which allows patients with a valid doctor’s prescription to possess and cultivate marijuana for personal medical use. In a victory for employers, the California Supreme Court recently determined that California employers are not required to accommodate medicinal marijuana use by their employees under this law. The Court held that the Act was only intended to protect medicinal users of marijuana from criminal prosecution and was not meant to affect an employer’s right to terminate individuals who use drugs that continue to be illegal under federal law.

Protections for Domestic Partners

Although there is no corresponding right under federal law, as of January 1, 2005, registered domestic partners have the same rights and obligations under California law as spouses. A domestic partnership is established by filing a Declaration of Domestic Partnership form with the California Secretary of State that meets criteria set forth in the California Family Code.

Establishing a domestic partnership affects several different employment-related obligations of businesses. For instance, while California employers (except those in San Francisco ) are not required to provide sick leave at all, if they do, they must allow employees to use sick leave to care for “kin care.” The “kin care” provisions of California law permit employees to use up to one-half of their annual allotment of sick leave to care for sick children, parents, spouse, domestic partner or the partner’s children. Also, insurers of companies that provide health insurance benefits to spouses are required to provide equal benefits to registered domestic partners in California .

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There are many other differences between California employment law, and federal employment law and the employment laws of most states. The above provides only a sampling of the surprises out-of-state employers and their counsel may discover regarding their California operations. Employers in California need to be familiar with the state’s unique, employee-friendly employment laws in order to run their businesses effectively, with an appropriately limited level of risk of employment law claims.

Frank Melton, Olivia Goodkin and Wendy Lane litigate and provide preventive day-to-day advice in connection with a wide range of issues that confront employers, such as those discussed in this article. They can be reached at (310) 286-1700, or visit www.rutterhobbs.com for more information.

Additional Personal Injury Information for Consumers

REIMBURSEMENT OF EMPLOYEES’ EXPENSES

Employees often incur expenses on behalf of their employers.  For instance, salespersons may use their automobiles and cell phones in the course of their duties.  Other employees may purchase office supplies or advance payment for hotel rooms or meals.  When must an employer reimburse employees for expenses incurred?  Must employers reimburse employees for actual expenses—whether or not the expenses were reasonable?  Alternatively, may employers give their employees a fixed amount intended to reimburse them for reasonable expenses?

 Recently, many of these questions were answered by the California Supreme Court in Gattuso v. Harte-Hanks Shoppers, Inc.   At issue in Gattuso was whether the employer was required to reimburse outside salespersons for the exact amount of the automobile expenses incurred by them, or whether the company was permitted to simply pay their outside salespersons more in salary and commissions than other employees to generally cover the expenses.

What is the Employer’s Obligation Under California Law?

Labor Code Section 2802 requires employers to “indemnify” employees for all “necessary expenditures . . . incurred by the employee in direct consequence of the discharge of his or her duties . . .” Clearly, if an employer reimburses its employees for the actual amount spent on expenses, then the employer’s duty under Labor Code Section 2802 is discharged.  For instance, if the employee pays for a hotel room for a business-related trip and the employer reimburses the employee for the exact amount paid, then the employer has met the requirement under Labor Code Section 2802.

May Employers Reimburse Auto Expenses by Using the Mileage Reimbursement Method?

Actual automobile expenses include insurance, repairs, registration, fuel, maintenance and depreciation.  It would be difficult and burdensome for employees to keep track of all such expenses and to apportion the expenses between work-related trips and personal use of the automobile.  It would likewise be burdensome for employers to review all the paperwork prepared by employees in connection with their actual expenses.

Employers are under an obligation to reimburse reasonable expenses.   Is it reasonable for one employee to drive a much more expensive car than his or her colleagues and expect the employer to cover those expenses?  How does an employer determine what is reasonable?

To avoid these sticky issues, most employers use a mileage reimbursement method, applying the Internal Revenue Service rate or some other rate agreed upon between employer and employee.  The IRS rate is intended to include an approximation of fuel, maintenance and other costs of automobile operation per mile driven.  The Gattuso court approved this method.  While the IRS mileage rate is less accurate than an actual reimbursement method, the Gattuso court noted that employees are permitted to challenge the mileage reimbursement method if they believe that their actual expenses exceed the mileage reimbursement.

May Employers Use the “Lump Sum Method” to Reimburse Employees for Auto
Expenses?

Employers sometimes pay employees a fixed lump sum that may be a per diem amount, a monthly sum or some other fixed stipend which is intended to reimburse employees for expenses.  The Gattuso court held that employers may use this method; however, the amount paid must be sufficient to provide full reimbursement for actual expenses necessarily incurred.  This method works best when employees incur similar expenses day after day, such as the same mileage every day that they work.   In the situation of predictable expenses, it would be of little value, and too much burden, for employers to require daily mileage reports of employees.

As with the mileage reimbursement method, employees retain the right to challenge the lump sum payment method if they believe the lump sum does not reimburse them for actual and reasonably incurred expenses.

Note that lump sum payments raise tax issues.  If the payments are considered taxable income to the employee—as opposed to reimbursed expenses—the decrease in actual dollars received by the employee must be taken into account in determining whether the payment provides full reimbursement of actual expenses.

May Employers Add a Lump Sum Payment to Other Compensation Paid to the Employees?

This was the ultimate issue in Gattuso.  The employer there paid the outside salespersons more in both salary and commissions to reimburse the employees for expenses incurred.  The court concluded that employers could add a lump sum payment to wages, but because wages are subject to numerous legal requirements including deductions, paycheck stub details, etc., the employer must include the lump sum reimbursement in a manner that differentiates what is wages and what is expense reimbursement.

Some employers with sales forces reimburse employees not only through increased wages, but also commissions.  If employers reimburse employees by increased commission percentages, then they run the risk of not reimbursing actual expenses.  If sales are low in a particular pay period, for instance, and the employee receives low commissions but continues to incur the same expenses, then it is likely the employee will not have been adequately reimbursed for car expenses.

Guidance by the Court

The Gattuso court concluded that while employers are permitted to pay employees increased salary and/or commissions to reimburse them for expenses, some means to identify the portion of compensation intended to reimburse expenses must be established.  The employer must also ensure that the amounts are sufficient to fully reimburse employees for actual expenses incurred.

Companies should review their policies and procedures in light of the Gattuso holdings to make sure that they are in compliance with Labor Code Section 2802 obligations.

ABOUT OLIVIA GOODKIN

Olivia Goodkin has over two decades of experience representing corporations, individuals and closely-held businesses in employment law and business litigation. She advises on the termination of employees, wage and hour laws, employment contracts and other employment issues, and she defends companies in wrongful termination lawsuits. Olivia also creates trade secret programs for companies seeking to protect their valuable intellectual property. Olivia can be reached at ogoodkin@rutterhobbs.com, or by telephone at 310.286.1700.

ABOUT RUTTER HOBBS & DAVIDOFF

Century City-based law firm Rutter Hobbs & Davidoff Incorporated represents clients in matters involving bankruptcy and corporate reorganization, business disputes and litigation, corporate and securities, estate planning and litigation, family law, intellectual property, labor and employment, and real estate. For more than one-third of a century, the firm’s experienced attorneys have represented middle market companies, early stage entities, large corporations and individuals.

For more information visit  http://www.rutterhobbs.com.

Wrongful Termination in an At Will Employment Scheme

In most states in the U.S., terminating an employee without any clear and formal basis is illegal. Companies, organizations and even government agencies that will be found guilty of such actions may be held liable in a wrongful termination lawsuit filed by the discharged employee. This is to recover damages from the employer including loss of wages and “fringe” benefits.

On the other hand, in an “at will” employment system such as in California, proving a wrongful termination claim is definitely difficult and complicated. “At will” employer-employee relationship scheme indicates that any employer may terminate an employee from his job position even without any reason except those that are specified under the law. This gives the freedom for most companies to decide whether to lengthen the services of an employee or terminate him without the risk being charged of wrongful termination.

“At Will” Employment Exemptions

Although “at will” employment scheme is not prohibited in California, terminating an employee on the following bases are considered violations of the law and can be subjected in a legal action:

• Ethnic group, gender, marital status, national origin, disability and religious and/or political affiliation

• Retaliation for a whistle blowing feat or testifying against the company

• Overtime pay demands including lunch and rest breaks

• Lodging requests

• Seeking for pregnancy, family and/or medical leave

• Refusal to work in a hazardous workplace

• Refusal to sign an illegitimate non-compete agreement

In addition, an “at will” employment scheme may be nullified in the presence of a contract that specifies the terms and conditions of employment. These agreements include stipulations such as job description, work hours, compensation and benefits, dispute resolution, tenure of employment, etc. If duly signed by both the employer and the employee, this will prevent the employers from terminating the employee without any grounds stated in the contract.

Legal Actions

If in case an employer has terminated an employee due to any of the abovementioned bases, the discharged worker may file the corresponding lawsuit against the employer or the company. Yet, in seeking for justice, it is always advisable to have consultations with a wrongful termination attorney especially if an employee does not have sufficient understanding of the Labor Law provisions.

Illegally terminated employees must understand that the filing a case require basic knowledge about legal procedures. This explains the importance of hiring a credible legal counsel for assistance and representation. Attorneys who are experts in the field of Labor Law will definitely improve a wrongful termination claim’s winning potential.

Seek only expert Attorney services in resolving wrongful termination issues. Visit http://www.attorneyservicesetc.com/Wrongful-Termination.html

Employer Liability When Employees Use Internet Communications For Offensive Purposes

What happens when you have a rogue or even out of control employee that uses an office computer to send or even post threats of great bodily harm or uses an office computer to generate other highly offensive communications? Can an employer who ends up being sued for such conduct assert a defense of immunity under the provisions of the Communications Decency Act of 1996 (CDA), 47 U.S.C. 230. This particular federal law defense of immunity actually does preempt inconsistent state law that might otherwise impose liability in certain circumstances. The Act immunizes “provider[s]… of an interactive computer service” (the employer) where “another information content provider” (the employee) has initiated the offending activity.

While the facts considered recently by a California Court of Appeal in Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790 are unquestionably extreme and will not likely be encountered in garden-variety employment situations, the CDA immunity defense could well apply in more benign or commonplace circumstances as a result of the court’s ruling in this particular case.

In the Delfino case, the court considered a situation in which unbeknownst to his employer, a very angry and upset employee sends anonymous emails to various adversaries. He also created posts on Internet bulletin boards, threatening great bodily harm and death to these various individuals.

In making this illicit communications, the employee used the computer systems of his employer. The victims of these horrible threats and postings ended up contacting the FBI. The FBI in turn traced the emails and postings to the employee’s office computer. This was accomplished by by tracking the emails and postings back through the originating IP address.

The employee admitted that he engaged in the in the conduct of which he was accused. In the end, criminal charges are filed against him.

The employer terminated the employee. The victims of the employee’s threats sued the employee and the employer for intentional and negligent infliction of emotional distress, and negligent supervision or retention. The plaintiffs in the lawsuit claimed the employer was aware that the employee was using its computer system to threaten them. The further argued that the employee took no action to prevent the co-defendant employee from continuing to make threats over the Internet.

The ultimate question before the court in the case was: Can the employer be liable under these circumstances?

Some may consider this particular scenario far fetched. The case was presented as one of first impression in Delfino v. Agilent. The California appellate court determined that an employer could in fact assert the immunity defense under the Communications Decency Act of 1996 (CDA), 47 U.S.C. 230.

In asking the court to dismiss the plaintiffs’ case, the employer filed a motion for summary judgment, in which it asserted that the employer was a “provider… of an interactive computer service”, and therefore entitled to complete immunity under the CDA. Section 230(c)(1) states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The statute also preempts inconsistent state law that would impose liability, saying: “Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Section 230(e)(3), italics added.

The primary goal of the CDA has been to control the exposure of minors to indecent material over the Internet. Nonetheless, one of its other important purposes is “to encourage [Internet] service providers to self-regulate the dissemination of offensive materials over their services.” This was determined in the case of Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 331, cert. den. (1998) 524 U.S. 937.

The CDA also been enforced in a manner so as to avoid the chilling effect on Internet free speech that would occur if tort liability ended up being imposed on companies that do not create potentially harmful messages but are simply intermediaries for their delivery. Id. at 330-331.

Accordingly, Section 230(c)(2) immunizes from liability an interactive computer service provider or user who makes good faith efforts to restrict access to material deemed objectionable. However, the provider must make a good faith effort to restrict access to material that is deemed objectionable.

Drawing on prior CDA cases that actually were beyond the employment context, the Delfino court ruled that there are three essential elements that a defendant must establish in order to claim section 230 immunity. These three elements are determined by the court are:

(a) the defendant is a provider or user of an interactive computer service;

(b) the cause of action treats the defendant as a publisher or speaker of information; and

(c) the information at issue is provided by another information content provider. Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 830.

In considering the first element (whether the employer was a provider or user of an interactive computer service), the court ruled the question a matter of first impression. In its judgment, the court specifically held: “We are aware of no case that has held that a corporate employer is a provider of interactive computer services under circumstances such as those presented here. But several commentators have opined that an employer that provides its employees with Internet access through the company’s internal computer system is among the class of parties potentially immune under the CDA.” Delfino, 145 Cal.App.4th at 805.

Prior courts had interpreted the term “interactive computer service” broadly in their own decisions and rulings. (For example, in Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1030, fn. 15, cert. den. (2004) 541 U.S. 1085), the court held that the employer was a “provider of interactive computer services” under the CDA. Id. At 806.

Considering the second element of the test, (whether the cause of action treated the defendant as a publisher or speaker of information), the court found that plaintiffs, in alleging that the employer was liable for the employee’s cyber threats, sought to treat the employer “as a publisher or speaker” of those messages. (sec. 230(c)(1).) Id.

On the last element of the test, (whether the information at issue was provided by another information content provider), there was no dispute that the employee was the party who had authored the offensive e-mails and postings. Moreover, there was no evidence that the employer played any role at all in “the creation or development” of these threatening and offensive messages and postings. Id. at 807-08.

In the end, the court concluded that the employer satisfied all three of the elements necessary to establish immunity under the CDA. Therefore, the court of appeal did affirm the trial court’s grant of summary judgment in favor of the employer. The court of appeals agreed that the grant of immunity under the CDA was proper pursuant to the terms and conditions of that law.

In its decision, the court also noted that, even if plaintiffs’ claims had not been barred under section 230(c)(1), granting summary judgment to the employer was nonetheless proper. The court reached this conclusion because plaintiffs failed to establish a prima facie case on their claims against the employer. Id. at 808. In this regard, the court specifically held that there was no indication that the employer ratified in any manner the employee’s conduct, and that the employer could not be liable under theory of respondeat superior. Id. at 810-12. In addition, there was not even any evidence that the employer was even aware of the employee’s conduct. Id. at 815.

In its holding and order, the court affirmed the long established principle that an employer will not be held vicariously liable for an employee’s malicious or tortious conduct in a situation in which the employee substantially deviates from his employment duties for personal purposes. The court additionally offered what can be considered an important teaching point on the theory and principle of ratification under California law.

The court noted that imposing derivative liability on the employer for an employees actions need not be founded on respondeat superior. Such liability can also be based upon the doctrine of ratification as discussed in Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal. App.4th 833, 852). In that case, the court observed that an employee’s actions may be ratified after the fact by the employer’s voluntary election to adopt the employee’s conduct. This is done, in essence, by treating the conduct as that of the employer’s own. Id. at 810.

In considering what evidence can support the ratification theory, the Delfino court cited the California Civil Code 2339. The court, in citing that provision, determined that an employer’s failure to discharge an employee after knowledge of his or her wrongful acts may be used as evidence that can support ratification of that employee’s conduct.

In the end, there were a number of lessons that have been learned in the aftermath of Delfino. This includes the fact that although employers can take some degree comfort that the CDA can offer them immunity if out of line employees make offensive or threatening Internet postings or emails, conservative employers should take corrective actions immediately against offending employees when such conduct is discovered. This action potentially should include termination, if the circumstances so warrant. Employers should institute certain policies and procedures that prohibit employees from using the employer’s computers to post or send threatening or offensive information. Moreover, since CDA immunity will be lost if the employer cannot establish that the information at issue was “provided by another information content provider”, cautious employers will also need to avoid any conduct that would suggest the employer has promoted, sponsored, initiated, or ratified the offending material in any way, shape or form.

Robert Masud, Esq. is the principal of Masud & Company LLC, a law firm for the world of business, finance and the internet. Find out how our lawyers can help you at http://www.masudco.com.

Stress at Work Claims: An Employer’s Guide to avoiding the pitfalls

1. Prolonged stress built up over the course of time through exposure to an excessive workload, long working hours or the breakdown of a working relationship can go unnoticed until too late. The question for employment/personal injury lawyers is when will an employer be liable for a psychiatric illness that is induced by workplace stress? The answer in legal terms is no different to the question of liability for any other injury: when the risk of injury, in this case a psychiatric illness, is foreseeable. Was it foreseeable that this particular employee would suffer a psychiatric illness and not just work-related stress?

SUTHERLAND v HATTON: THE 16 POINT PLAN

2. In Sutherland v Hatton 2002 IRLR 263 the Court of Appeal laid down guidelines as to how courts should deal with negligence claims made against employers by employees with psychiatric injuries.

3. The Court of Appeal stated that an employer will escape liability for an employee’s psychiatric injury unless it was reasonably foreseeable that the employee in question would suffer such an injury as a result of occupational stress. That of course is not a new principle.

4. The Court made it very clear that there are no occupations which are so intrinsically stressful that psychiatric injury is always reasonably foreseeable.

5. In the view of the Court the answer to the question of foreseeability will depend upon the relationship between the particular demands of a job and the particular characteristics of the employee concerned. Foreseeability is whether this kind of harm to this particular employee was reasonably foreseeable i.e. injury to health attributable to stress at work. The Court therefore set out and listed a number of factors which were relevant to the issue of foreseeability and these factors were split into two groups.

6. The first group related to the demands of the job and included the following considerations:- * The nature and extent of the work done by the employee; * Whether the employee’s workload is much greater than is normal for the kind of job which he or she performs; * Whether the employee’s work is particularly intellectually or emotionally demanding; * Whether demands being made of the employee are unreasonable when compared with the demands made of others in comparable jobs; * Whether there are signs that others doing the same job are suffering harmful levels of stress; * Whether there is an abnormal level of sickness absenteeism in the employees job or department.

7. The second group of factors reflected the view of the Court of Appeal that the most important question centres on what the employer knew, or ought reasonably to have known, about the circumstances of the individual employee in question. The Court stated that the following factors might be relevant: * Whether there are signs from the employee of impending harm to health; * Whether the employee has a particular problem or vulnerability; * Whether the employee has already suffered from illness attributable to stress at work; * Whether there have recently been frequent or prolonged absences that are uncharacteristic of the employee and whether there is reason to think that these are attributable to stress at work.

FACE VALUE

8. An employer will be entitled to assume that an employee can cope with the normal pressures of a job unless the employer knows of something specific about the job or the individual concerned that should make the employer consider the issue of psychiatric injury. The employer is not obliged to make intrusive enquiries and is generally entitled to take what he is told by his employees at face value.

DUTY TO TAKE REASONABLE STEPS

9. A duty to take steps only arises where signs that an employee might suffer psychiatric illness from stress at work are plain enough that any reasonable employer would realise that he should act.

10. The employer will only be in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.

11. The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable (rather like the test for unfair dismissal); these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

12. An employer can only be reasonably expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (probably from a Consultant Psychiatrist or Occupational Health Consultant).

13. An employer who offers a confidential advice service including counselling or treatment is unlikely to be found in breach of duty except where he has been placing unreasonable demands on an individual where the risk of psychiatric injury was clear.

14. One step an employer is not obliged to take, even where that step would be the only reasonable and effective one available, is to demote or dismiss an employee in order to remove him or her from a stressful situation. In the view of the Court an employer will not be in breach of duty simply by allowing a willing employee to continue in his or her job.

Ian Mann – Employment Barrister http://www.employment-barrister-uk.com http://www.13kbw.co.uk13 King’s Bench Walk Ian Mann was called to the Bar in 2000. He practices in employment disputes representing both employers and employees. His employment practice embraces the full spectrum of Employment Tribunal, High Court and appellate work and covers all areas of employment law, especially discrimination.