1. Legal, Practical, and Ethical Implications of Investigating Employee Misconduct November 21, 2011
Presented by
Anthony J. Campiti
Thompson & Knight LLP
One Arts Plaza
1722 Routh Street, Suite 1500
Dallas, Texas 75201
Presented to
Dallas Bar Association
Labor and Employment Section

2. The Termination Meeting and Setting the Stage

3. Options for Gathering Evidence
Criminal Background Checks
Credit History Reports
Polygraphs
Phone Records
Wire Taps
Social Networking Sites
Private Investigators
Surveillance Videos
s and Texts

4. Two Words of Caution 1. Legal Restrictions Vary by State
2. Public Employees Have Additional Rights

5. Background Checks Criminal Background Checks Credit Checks
Fair Credit Reporting
Act (FCRA)
Requirements
State law requirements/prohibitions

6. Physical Searches
Searches of an employee’s office, person, vehicle, desk, locker, personal belongings, and the like
- Invasion of privacy
- Personnel policies are key
- Consent as a defense

7. Private Investigators
Vicarious Liability:
Invasion of Privacy
Trespass
Risk-Mitigation Options
Attorney-Client Privilege

8. Video Surveillance Invasion of Privacy
Section 8 of the National Labor Relations Act (NLRA)
Mandatory bargaining subject if discipline may be imposed
How much information must be disclosed to the union?

9. Cybersurveillance & Searches
Searches of
Computer hard drives
accounts
Text messages
Internet searches, history, and usage
Practical Considerations
Using a computer forensics expert
Bit-for-bit mirror image of computer
Chain-of-custody procedures
Generally no attorney-client privilege

10. Cybersurveillance & Searches (cont.)
Legal Considerations
Section 8 of the NLRA
Invasion of Privacy
The Federal Wiretap Act

11. Invasion of Privacy Importance of Information Technology (IT) Policies
Takeaway from City of Ontario v. Quon
Keep the policy current with new technology
Clearly communicate the policy
Consistently enforce the policy and avoid selective enforcement

12. Email Privacy – Privilege Issues
Attorney/Client s
How should you respond?
“I’ve been searching through Jim’s s and you’ll never guess what I’ve found: a bunch of s between him and his attorney!”

13. Email Privacy – Privilege Issues (cont.)
Takeaways from (1) ABA Formal Opinion (Aug. 4, 2011) – Relating to with a Client, (2) Stengart v. Loving Care; (3) Convertino v. US DOJ, and (3) Holmes v. Petrovich Development Co.:
Ensure IT policy covers all communications
Know your TDRPC ethical obligations
Rule 1.01 – competent representation
Rule 1.05 – protection of confidential information
Rule 4.04(a) – obtaining evidence without violating rights of third persons
Rule 8.04(a)(3) – dishonesty
Sanctions = potential disqualification, evidence suppression

14. Cybersurveillance & Searches – Federal Statutes
The Wiretap Act
ECPA prohibits an employer from “intercepting” “wire, oral, or electronic communications”
SCA generally permits an employer to view and retrieve communications stored in its own system but not third-party systems
Guidelines for avoiding liability

15. Social Media Sites OK to view publicly available sites
Risky to use pretexts to obtain non-public information
Know your TDRPC ethical obligations under Rules 4.01(a), 4.04(a), and 8.04(a)(3)
NLRA implications from discipline/discharge decisions

16. GPS Tracking
If notice is given and consent obtained, OK within the workplace, during working hours, or on company vehicles/ company cell phones
Risky outside the workplace, off-duty, on private vehicles/ private cell phones, or without notice and consent

17. Polygraphs Employee Polygraph Protection Act of 1988 (EPPA)
General Rule: Employers can’t require employees to submit to lie-detector tests
Exception: “ongoing investigation” of workplace theft or economic loss
Should be option of last resort

18. Personal Phone Records
2006 Telephone Records and Privacy Protection Act
Makes it a crime to obtain a person’s personal telephone records through “pretexting”

19. Questions

20. Anthony J. Campiti Partner Board Certified - Labor & Employment Law Texas Board of Legal Specialization Thompson & Knight LLP One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas (Direct) (Fax)