Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, June 1, 2012

Your Ex-Boss Wants You In Jail

I’ve noticed a disturbing trend recently. Not only are former employers suing ex-minions, but they’re trying to have them tossed in jail. That’s right: quit and go to jail, especially if you go to work for a competitor. The criminalization of employment law shows just how hostile employer-employee relations have gotten.

Here are some laws your employer might try to prosecute you under:  

Computer Fraud and Abuse Act: This is a law that was geared to hackers. Basically, it says if you access a computer without authorization, or if you exceed your authorization, you can go to jail. An employer recently tried to claim that an employee who used his authorized access to download customer contact lists violated this law. Fortunately, the 9th Circuit said the law didn’t apply to misuse of information employees were authorized to obtain. He had to appeal twice, because the 9th Circuit originally ruled against him. Does that mean courts in other circuits won’t let your employer toss you in jail if you copy something they think you shouldn’t have when you leave? I wouldn’t bet my freedom on it.

The 9th Circuit pointed out that other circuits out there disagree: “We remain unpersuaded by the decisions of our sister circuits that interpret the CFAA broadly to cover violations of corporate computer use restrictions or violations of a duty of loyalty. See United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010); United States v. John, 597 F.3d 263 (5th Cir. 2010); Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006).”

Your employer wants to make violating your trade secret or confidential information agreement a crime.  

National Stolen Property and Economic Espionage Acts: A computer programmer found out the hard way after downloading the code he wrote for a program that employers are playing hardball. He was convicted under these two laws and had to appeal. The 2nd Circuit said the National Stolen Property Act didn’t apply to intellectual property. It also said the Economic Espionage Act didn’t apply to a product that wasn’t intended for sale, but was only for internal corporate use. Still, employers are successfully prosecuting former employees if they think trade secrets were stolen.

It’s bad enough that employers are making everyone from the janitor and receptionist to their top sales people sign noncompete agreements that limit their right to work for competitors. Most employees don’t have the resources to fight, so they end up out of their chosen field for 1 – 2 years. Now, they can face jail time too.

It cost these employees a boatload of money to defend themselves. Most employees couldn’t afford to fight. I wonder how many employees will end up in jail in other circuits because they couldn’t afford to fight.

Another concern is that employers will use the threat of criminal prosecution to chill whistleblowers from copying information about employer illegal activities. Whistleblowers have a tough enough time and take enough risk for their heroic efforts. They shouldn’t have to risk their freedom in order to bring down a criminal enterprise.

It’s time to urge legislators to make employment laws fair to employees. Nobody should be forced out of their profession or lose their freedom just because they don’t have enough money to fight a bully employer.

3 comments:

  1. First, I am not a lawyer, please don't take this as legal advice. I work as a process engineer for a manufacturer. The nice thing about being wanted- they asked me to sign all kinds of shiny papers for non-competes, NDA's, etc etc. I said no, and interviewed with some other companies, before they agreed to hire me on my terms. I'm not out to steal someone's hard earned research, and I eventually agreed to a modified version of the NDA. But if you can avoid it (which is not always, maybe even rarely possible), stay the hell away from non competes. Make sure you have a lawyer review anything before you decide to sign. A couple hundred bucks now can save ALOT of pain down the road. Keep your own projects on your computer at home, and make sure that it's separate from any company provided software or hardware. Keep a definite distinction between any project you do on your own, and projects you do for the company, with a clear record of your activities. That practice just kept me out of jail. They were all kinds of antsy when an idea I proposed while working for them (which they rejected until after I was hired by a competitor) ended up as a front running RCI strategy for manufacturing process automation for another company.They thought I stole their software, though their version was created by someone else, and was entirely different (and inferior, in my less than objective opinion). It cost me 14k in legal bills to battle the litigation, and another 5k to stay out of jail, though fortunately I was able to recover legal costs. Forewarned is forearmed- keep records, separate your work from your company's, and don't talk to your employer's about private projects that don't impinge on your obligations to them. What they don't know they can't use against you. And always, talk to a lawyer- they know the law, I know engineering- if I hadn't talked to a patent attorney in passing and mentioned what I did for a living, I would have ended up in a whole lot of trouble.

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  2. It truly is a disturbing trend that sexual harassment cases increase as days go by. Uhmn, Sexual Harassment Lawyers are needed! :)

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  3. Donna- I saw this article today on foxnews, thought you might be interested. What's your take on it?

    http://radio.foxnews.com/toddstarnes/top-stories/weather-channel-anchor-says-she-was-fired-over-military-service.html

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