Alerts
Texas Supreme Court Decides in Favor of Employers on Issue of First Impression
by Matt Veech
July 1, 2010
In Waffle House v. Williams, the Texas Supreme Court was presented with an issue of first impression relating to the exclusivity provision of the Texas Commission on Human Rights Act (TCHRA). In Waffle House, the employee prevailed at trial on her claims of sexual harassment and negligent supervision and retention. The trial court entered judgment on the negligence claims under an election of remedies because the employee was able to avoid the TCHRA's statutory cap on damages.
After the Court of Appeals affirmed that judgment, the Texas Supreme Court granted petition to consider several issues, including an issue of first impression: "may a plaintiff recover negligence damages for harassment covered by the TCHRA?" In its June 11, 2010 opinion, the Texas Supreme Court recognized that the TCHRA is preemptive in nature, and as such, the Court held that the plaintiff could not recover on her negligence claims when the complained-of negligence is intertwined with the complained-of harassment. In its opinion, the Court stated:
The root of [the employee's] negligence claim is that Waffle House kept around a known harasser, but this claim does not arise from separate, non-harassment conduct; it is premised on the same conduct that the TCHRA deems unlawful.
As the complained-of acts constitute actionable harassment under the TCHRA, they cannot moonlight as the basis for a negligence claim, a claim that presents far different standards, procedures, elements, defenses, and remedies. It is untenable that the Legislature would craft an elaborate anti-harassment regime so easily circumvented.
The court's opinion is an obvious victory for employers. The opinion is particularly significant to employers when faced with employment discrimination, harassment or retaliation lawsuits that also assert claims of negligent hiring or negligent retention.
Employees May Have a Privacy Interest in Emails Sent from Employer-Provided Computers
by Matt Veech
April 28, 2010
Since the use of email and the internet have become a predominant method of communication, employers have established written policies governing their employees' use of email and access to the internet.
The typical practice for employers is to include a policy in the Employee Handbook that states all email and internet usage may be monitored at any time by the employer and that the employee should not expect any such usage to be private and confidential. However, in a recent ruling by the New Jersey Supreme Court, the court recognized that there are limitations to such monitoring by the employer. In Stengart v. Loving Care Agency, Inc., 2010 WL1189458 (N.J. March 30, 2010), the court stated that an employee has an expectation of privacy in email communications when corresponding with an attorney through a personal email account (i.e. not an email account provided by the employer) despite the employer's written policy stating that email communications should not be considered private or personal to any employee. Importantly, the employer's written policy did not clearly address whether the company would monitor internet-based email services accessed through the employer's computer system.
The Court framed the issue succinctly: "This case presents novel questions about the extent to which an employee can expect privacy and confidentiality in personal emails with their attorney which they accessed on a computer belonging to their employer". In conducting its analysis, the court noted that there were two principal areas involved: 1) notice provided by the employer's policy and 2) important public policy concerns of the attorney-client privilege.
Ultimately, the court held that the employee could reasonably expect e-mail communications with their lawyer through a personal account to remain private, and that sending and receiving email via a company computer did not eliminate the attorney-client privilege that protected them. Importantly, the court stated that its decision does not mean that employers are prohibited from monitoring workplace computers. Rather, employers can adopt lawful policies, enforce those policies, and discipline employees for violations of those policies when appropriate. However, the court expressly recognized that employers have no need to read the specific contents of privileged communications to enforce a company policy.
Social Networking Impersonation Now a Felony in Texas
by Matt Veech
February 1, 2010
The Texas legislature passed a new law effective September 1, 2009 that deals in part with impersonating another on a social networking website (Texas Penal Code Section 37.07-"Online Harassment"). This law makes it a felony to use the name or persona of another person to create a web page on or to post one or more messages on a commercial social networking site (1) without obtaining the other person's consent; and (2) with the intent to harm, defraud, intimidate, or threaten any person.
The law further provides that it is a misdemeanor for a person to send an electronic mail, instant message, text message or similar communication that references a name, domain address, phone number or other item of identifying information belonging to any person (1) without obtaining the other person's consent; (2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and (3) with the intent to harm or defraud any person.
This law could prove to be particularly helpful to employers who are presented with the issue of a disgruntled former employee posting or sending under the name of someone else disparaging statements about the employer's business, management, or other employees.
The law could also prove helpful to employers that are dealing with the task of effectively monitoring employee communications about company-related business on the various social-networking websites.
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