Access The Ex-Boss's Email? Better Like Wearing Orange

In yet another example of the criminalization of employment law, a Tesla engineer was just convicted and placed on probation for accessing his ex-boss's email. On top of 5 years of probation, he has to provide restitution to the company, which claims it was damaged when he posted confidential information online.

The charges were two felonies and one misdemeanor that could have resulted in 6 years of prison time.

Bottom line is that there are some harsh laws that prohibit you from accessing any emails or computer information you aren't allowed to access. Once you're fired, you can't access anything with company passwords even if they don't change them or discontinue your access right away.

Even if you still work there, if you access something with someone else's password or that you know you aren't allowed to access, you could be committing a crime.

Expect the courts to continue to come down hard and harder on employees as we get more and more Trump appointees on the bench. Be careful out there.

The Criminalization Of Employment Law

A new indictment in a trade secret case, where a former employee opened his own business, made me think about something that's been bothering me for awhile, namely, the criminalization of employment law. I did a piece about this a couple years ago called Your Ex-Boss Wants You In Jail. It's gotten worse. Not only are we sending employees to jail for what used to be civil offenses, but the criminalization is completely one-sided. Employees blink wrong, go to jail. Employers can't get tossed in the hoosegow no matter how bad they misbehave.

Here's what The Dallas Morning News says about the case:

The indictment states that Tezock was an employee of Voltaix for about 16 months until September 30, 2005, when he was scheduled to be let go from the company.

During the last month of his employment he was allowed to complete a project from home, working with proprietary company files on his personal computer. It was during this time that the district attorney’s office alleges Tezock made copies of a secret recipe for germane, a valuable chemical used in semiconductors and solar technology.

Speaking through an attorney, Tezock denied the charge that he had stolen plans to produce germane.

A letter released by Tezock’s legal counsel said that he had applied and was granted a patent for his method of germane production in 2009. According to Tezock, Voltaix’s response at that time was to try and re-hire him.

Daniel Therings, a former attorney for Metaloids, said that thereafter Voltaix brought a civil action against the company and Tezock in 2010. Court documents filed in Texas’ fifth district court of appeals show the company asked the court to stop Metoloids from producing germane.

While Therings said the case is still caught up in appeals, he said the court sided with Metaloids. A news brief on the company’s website said Voltaix was ordered to pay the cost of further litigation.

He got a patent for it, but it's their trade secret? Let's assume that this isn't as ridiculous as it sounds. So an employee who uses alleged trade secrets to open his own business is a criminal, despite antitrust laws saying competition is one of the biggest tenets of capitalism. Indeed you can look at all the arguments againstnoncompetes in Massachusetts to see why letting employees compete with former employers is a good thing. Okay, taking trade secrets is bad, if it really happened. So sue the employee for any damages. But a crime?

One employee was sentenced to four years in prison for trade secret violations. Another employee is sentenced to 97 months. There are trade secret convictions and more trade secret convictions.

Then there employees getting convicted for exceeding their authority to access information on computers at work. One guy was sentenced to 41 months under the Computer Fraud and Abuse Act and his sentence was finally reversed on appeal. CFAA prosecutions have been all the rage among employers seeking to toss employees in jail. Yet if you look at the civil cases on CFAA, you can see just how broad this law is and how much employees are at risk if they click the wrong link at work.

 Employers Skate

Then look at the employer side. No criminalization there. Despite attempts to criminalize wage theft, all we get are local ordinances and attempts by Republicans to make even the wage theft ordinances illegal. Wage theft is rampant, and it costs us all money. Several Florida counties have passed ordinances to beef up efforts to go after employers who steal employee wages. They should be throwing them in jail, but no, can’t do that. Heck, Broward County couldn't even use the term "wage theft" in its ordinance because employer groups threw a hissy fit.

Look at employers who violate antitrust laws, which have criminal penalties, by the way, by forcing low level employees who can’t affordto fight to sign noncompete agreements for the sole purpose of preventing competition. Are they being prosecuted for making employees virtual indentured servants? No way. What about eBay, Apple, Google and othersconspiring to violate antitrust laws with no-poach hiring agreements? Criminal prosecutions? Nope. Slap on the wrist.

Egypt just made sexual harassment a crime. We can’t even get federal laws passed making sexual harassment of unpaid interns illegal. That’s right. Our kids have no legal protection against sexual harassment anywhere but Oregon and NY.

Groping teenagers and young women? Not even a civil offense. Stealing employee wages? Not a crime. But starting a competing business against your former employer? That’s a jailing offense.

Seizing Employee Property?

Now employers want to pass a law allowing courts to seize the property of former employees who dare to compete. The Fourth Amendment be damned. How can you fight a case if you don't have the proof? You can't, and that's exactly what employers want. They can shut down employees who dare to compete without lifting a finger. Where's the outrage? Why isn't hell being raised at the prospect of this ridiculous new law?

This makes me mad as hell. Does it make you mad too? Then start raising hell with your legislators. Tell them to stop the one-sided criminalization of employment law. And tell them to say no to seizure of employee property for alleged trade secret violations.

Let's not give up employee rights so easily.

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.