Is Your Workplace Going to the Dogs (or Pigs)?

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We all are familiar with individuals who have sight impairments and use a service dog to navigate public spaces or assist an employee in the workplace. The Americans with Disabilities Act (“ADA”) contains specific provisions entitling an individual with a disability to bring a service animal into businesses open to the public in most situations.

However, the employment provisions of the ADA “do not limit the types of animals that an employee may need in the workplace as a reasonable accommodation,” according to DiMuroGinsberg partner, Jonathan R. Mook, in an article in SHRM Online. If a disabled employee has a snake, bird or, even, a pig as a comfort animal, an employer may need to assess the employee’s request to bring the animal to work and decide whether the request would create an undue hardship on the employer’s operations. The article discussing the assessment process, entitled “Set Ground Rules for the Different Types of Service Animals,” may be found at here.

If you are interested in obtaining additional information about an employer’s obligation to reasonably accommodate disabled employees, you may contact Jonathan at jmook@dimuro.com.

Best Practices for Addressing Workplace Crime

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How should an employer react when an employee is accused of committing a crime? How can an employer protect its rights while shielding the business from legal scrutiny? Should you talk to the accused employee about the accusations?

Answers to these and other questions are the subject of an article by DiMuroGinsberg partner, Andrea Moseley. The article entitled, “My Employee Is Accused of a Work Related Crime – What Should I Do?” appears in the online employment law newsletter, HR Hero, by BLR publications. As Andrea’s article explains, properly dealing with an employee who has been accused of criminal behavior will depend upon the specific circumstances.

Where an employee is formally accused of wrongdoing and is represented by counsel, Andrea advises that an employer should not discuss the matter without first speaking with the employee’s attorney. Additionally, in situations where an employer has received a request for records or a subpoena, it usually is advisable for the employer to retain its own counsel to evaluate the propriety of the records request, especially where the request may be invasive, expensive or burdensome to comply with.

Click here for a copy of Andrea’s full article.

Seven DiMuroGinsberg partners recognized by The Best Lawyers in America©.

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DiMuroGinsberg is proud to announce that the following attorneys will be listed in the 2018 edition of The Best Lawyers in America© for their achievement in certain fields of law.

  • Bernard J. DiMuro
    • Commercial Litigation
    • Ethics and Professional Responsibility
  • Nina J. Ginsberg
    • Criminal Defense – General Practice
    • Criminal Defense – White-Collar
  • Michael S. Lieberman
    • Appellate Practice
  • Jonathan R. Mook
    • Employment Law – Management
  • Harvey B. Cohen
    • Commercial Litigation
    • Personal Injury Litigation – Plaintiffs
    • Personal Injury Litigation – Defendants
  • Stacey Rose Harris
    • Commercial Litigation
  • C. Thomas Hicks III
    • Business Organizations including LLCs and Partnerships
    • Corporate Law
    • Real Estate Law

The Best Lawyers in America selection process involves a rigorous peer-review survey comprising more than 5.5 million confidential evaluations by top attorneys. We are very proud of our attorneys for being recognized by their peers for excellence in their specialties of law.

Nina Ginsberg installed as First Vice President at NACDL’s Annual Meeting

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DiMuroGinsberg is proud to announce that founding partner, Nina Ginsberg was sworn in as First Vice President of the National Association of Criminal Defense Lawyers (NACDL) at the Association’s 60th annual meeting in San Francisco, CA on July 29, 2017.

Nina has been an active member of the National Association of Criminal Defense Lawyers for decades. She previously served three terms on the Board of Directors and served as Second Vice President, Secretary and Parliamentarian prior to her recent appointment. Nina has served on many committees including the National Security, International Law, Sex Offender Policy and Death Penalty advisory committees. She also has represented NACDL as a Delegate to the United Nations Commission on Crime Prevention and Criminal Justice.

For more about Nina’s appointment and NACDL’s mission, click here.

Andrea Moseley to speak at the Southeastern Association of Law Schools (SEALS) Annual Meeting

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Andrea’s program, “Growing Cannabis Law: When Grass Becomes Cash,” will be part of the legal educator panels and discussion groups that offer law professors an opportunity to enhance their classroom teaching.

The panel’s discuss will focus on the law reforms that are sprouting throughout the country. Many states now permit restricted medicinal or recreational use, possession, sale, cultivation, and transportation, creating a cash-crop business opportunity. Yet federal law still prohibits cannabis activities. If a state passes a law to decriminalize cannabis, however, the federal government permits it so as long as a state regulation system is in place.

This discussion group will explore the many facets of law relating to cannabis such as property, commercial, and criminal law. They will examine vexing issues including state-federal conflicts and discriminatory effects as well as whether decriminalization promotes substance abuse. Also considered will the banking, tax, bankruptcy, intellectual property, insurance, international trade, interstate transportation, and antitrust implications.

Read more about the SEALS program here.

Is Your Noncompete Enforceable?

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Noncompete agreements can be an effective way to prevent your employees from leaving your employ to work for a rival business using the skills, information and contacts they acquired while working for you. However, for a noncompete to be effective, it has to be enforceable as demonstrated by the decision in NVR, Inc. v. Nelson from the federal district court in Alexandria.

An article analyzing the court’s decision by DiMuroGinsberg attorney, Jayna Genti, appears in the June, 2017 issue of the Virginia Employment Law Letter. Jayna’s article entitled “Virginia Court Voids Employer’s Noncompete,” discusses the problems the court found with the noncompete’s indefinite geographic limitations and overbroad scope. As Jayna’s article explains, noncompetes must be drafted to ensure that the restrictions are clear and definite and do not unduly restrict the work opportunities of a former employee.

Click here for a copy of Jayna’s article.

For a copy of the opinion, NVR, Inc. v. Nelson, or to subscribe to the Virginia Employment Law Letter, please contact mkraftschik@dimuro.com.

Venue in Patent Infringement Cases – Where Do We Stand?

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As has been widely publicized, the Supreme Court recently affirmed that the rules governing where a patent infringement case may be brought against corporate defendants are distinct from those involving other causes of action in the federal system. Specifically, the Court held that in patent cases, the relevant statute, 28 U.S.C. § 1400(b), mandates that the case be brought where the accused corporate infringer is incorporated or has committed acts of infringement and has a regular and established place of business, whereas in other federal cases, venue is proper wherever the corporation is subject to personal jurisdiction, 28 U.S.C. § 1391(c). TC Heartland LLC v. Kraft Foods Group Brands, LLC, ___ U.S. ___, 137 S. Ct. 1514, 1516-17 (2017). The Court affirmed that its 1957 decision in Fourco Glass Co. v. Transmirra Prod. Corp., 353 U.S. 222, 226 (1957) still controls on the issue of venue in patent cases, and held that the ruling by the Court of Appeals for the Federal Circuit (“Federal Circuit”) that Fourco had been overruled by intervening amendments to the venue statute – a rule that had controlled in patent infringement cases for 27 years – was incorrect. Id.

The impact of the TC Heartland decision is, on the one hand, straightforward, but not so much on the other. It is now clear that for purposes of patent infringement, a corporation “resides” only where it is incorporated. TC Heartland, 137 S. Ct. at 1517. At the same time, the rule still stands that a defendant can waive its challenge to venue, and a venue challenge must generally be made at the pleadings stage. Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979); Fed. R. Civ. P. 12(b), 12(h)(1). Accordingly, must cases where venue was proper under the now-rejected Federal Circuit rule be transferred in light of TC Heartland’s change of the law? And, what are the parameters of a “regular and established place of business” under TC Heartland? An early decision from the Eastern District of Virginia (“EDVA”), one of the first decisions applying TC Heartland, addresses both these questions.

Cobalt Boats, LLC v. Sea Ray Boats, Inc., No. 2:15cv21, 2017 WL 2556679 (E.D. Va. Jun. 7, 2017) involved a litigation filed in 2015 under the Federal Circuit’s interpretation that venue in a patent infringement case is proper in any district where the corporation is subject to personal jurisdiction. The defendants had initially conceded that venue was proper under what they believed was controlling law, but had moved to transfer to a more convenient forum. Id. at *1. Defendants’ motion was denied, and the parties moved forward with the litigation, including claim construction proceedings, a motion for summary judgment, and motions in limine. Id. Days after the final pretrial conference, the TC Heartland decision issued and defendants brought a renewed motion to transfer. Id.

The EDVA first found that defendants’ delay in bringing the venue challenge was not excused as an exception that is available “when there has been an intervening change in the law recognizing an issue that was not previously available.” See Holland v. Big River Minerals Corp., 181 F.3d 597, 605-06 (4th Cir. 1999). The EDVA found that defendants’ “assumption that Fourco was no longer good law was reasonable but wrong,” and the delay was therefore not excused because the law technically had not changed. Id. at *2-*3. Notably, the EDVA also found that the argument of the second defendant failed because it wanted to remain in the same jurisdiction as the other defendant, and had therefore waived its right to challenge venue. Id. at *4. In response to alternative theories of proper venue put forth by the plaintiff, the EDVA left open the possibility that proper venue could be established under TC Heartland by showing, for example, that salespeople in the district or activities such as warehousing by a related entity (e.g., a subsidiary or sister entity) related to the infringement could constitute a regular and established place of business. Id. at *4. The EDVA’s decision was upheld by the Federal Circuit two days later. See In Re Sea Ray Boats, Inc., 2017 WL 2577399, at *1 (Fed. Cir. Jun. 9, 2017).

From this early decision, we now know two things. First, transfer will not necessarily be automatic, despite TC Heartland’s seeming reversal of law that has been followed for 27 years, at least in cases where substantial preparation for trial has taken place. Second, the boundaries of what constitutes a “regular and established place of business” remain undefined, and must be determined under the facts of each case. What does seem clear is that “regular and established places of business” are not just headquarters. Thus, venue in jurisdictions with a large concentration of tech centers, such as Northern Virginia, seems likely to be proper in a large number of cases.

Cecil Key is a member of DiMuroGinsberg’s IP Group, along with Jay Kesan and Teresa Summers. For more information about this topic or any Intellectual Property matter, you may contact Cecil at ckey@dimuro.com.

To download a copy of this white paper, click here.

Changing Times: Marijuana in the Workplace

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As Bob Dylan sang, “the times they are a changin’,” and this never has been truer than with public attitudes toward the use of marijuana. Once feared as a drug that would create “Reefer Madness,” as the title of a 1930’s movie proclaimed, marijuana use increasingly has become acceptable among the general population both for medicinal and recreational purposes.

This year, the Republican and Democratic candidates running for governor have called for decriminalizing marijuana use, and in response to a request from Senate Majority Leader Tommy Norment, the Virginia State Crime Commission will be studying whether marijuana should be decriminalized in the Old Dominion. The Commission’s executive committee has said that it will issue the study this year.

So, what does all of this portend for Virginia employers? If marijuana is decriminalized in Virginia, does that mean that persons who use marijuana to treat medical conditions that rise to the level of disabilities now may find protections under the Americans with Disabilities Act (“ADA”) and be entitled to use marijuana as a reasonable workplace accommodation? In order to seek some guidance on these and other questions involving marijuana use, the Virginia Employment Law Letter asked DiMuroGinsberg partner, Jonathan R. Mook, who is a nationally recognized authority on the ADA, as to what he thinks employers need to know.

How is marijuana use dealt with under the ADA?

Because marijuana still is an illegal drug under federal law, it comes within those provisions of the ADA that exempt from the statutes’ protections persons who are engaging in the illegal use of drugs.  That means there are no limitations on employers asking questions about whether a job applicant or employee currently is engaging in the use of marijuana or for employers to test for such use, and if the answer is “yes” or the test is positive, take a job action such as refusal to hire or termination.  There also is no need to accommodate an employee who currently is using marijuana, even if for medical purposes.

What conditions are treated with medical marijuana?

Medical marijuana has been prescribed for a variety of medical conditions including PTSD, pain relief (instead of opioids), and to enhance appetite for those persons who are HIV positive.  Importantly, even though the ADA allows an employer to take a job action against an applicant or employee based upon the use of marijuana, the employer may run into problems if the employer bases the job action on the underlying medical condition that the person has.  In the latter event, the ADA would come into play.

What is the importance of state law?

Any legal protections that an employee may have will be founded upon state laws legalizing use of marijuana for medicinal or recreational purposes.  Hence, Virginia employers who have operations outside of the Commonwealth need to keep current on the marijuana laws in each of the states in which they have operations and abide by those laws.

How is the legalization of marijuana in other states affecting employer attitudes toward “drug free” workplaces?

Particularly in those states that have laws allowing for the use of recreational marijuana, many employers are considering adjusting their “drug free workplace” policies to recognize the reality that many otherwise qualified job applicants may test positive for marijuana use. That’s because signs of marijuana use can turn up in drug tests long after the drug’s mind-altering effects have worn off. Automatically disqualifying all applicants who test positive severely reduces the available pool of qualified individuals.

Employers, therefore, are beginning to evaluate, on an individualized basis, job applicants who test positive for marijuana, rather than disqualifying those applicants off the bat.  This change in employer practices has occurred irrespective of whether the state in which the employer is located has an explicit state law protecting job applicants or employees who use, for example, medical marijuana.

Given these changing times, what’s the bottom line for employers?

At base, employers have rules prohibiting their employees from engaging in the use of drugs because of the negative impact such use can have on employee performance and workplace safety. Even if marijuana use is legalized in the Commonwealth, employers still have these legitimate concerns, and should be able to discipline employees for any poor or unsafe performance of their job duties that occurs due to marijuana use. Thus, if you suspect that an employee is coming to work impaired by the effects of smoking marijuana, remember the best way to deal with the issue is to focus on the employee’s job performance problems, irrespective of what may be the cause.

Jonathan R. Mook is a nationally recognized authority on the Americans with Disabilities Act and is a co-editor of the Virginia Employment Law Letter. For questions regarding this article or other employment law issues, you may contact Jonathan at jmook@dimuro.com.

To download a copy of the article, click here.

Navigating protections for workers with addictions

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Jonathan Mook, in an article written by Tammy Binford for HR Hero, offers tips to HR and employers on how to handle an employee’s addiction to prescription medication. When do the medications taken constitute a disability under the ADA? What should you do if you believe their addiction poses a safety threat to the organization?

Click here to read the full article “Dealing with Hidden Disability: Navigating Protections for Workers with an Addiction.”

Jonathan R. Mook is a nationally recognized authority on the Americans with Disabilities Act and is a co-editor of the Virginia Employment Law Letter. For questions regarding this article or other employment law issues, you may contact Jonathan at jmook@dimuro.com.

How To Protect Against and Respond to Cyberattacks – Part 2

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by Milton Whitfield and Jayna Genti DiMuroGinsberg PC

Last month, we reported on the costs of data breaches and steps you can take to help prevent what has become a very common occurrence at businesses and organizations across the country. If a data breach occurs at your organization, you need to be aware of Virginia laws that require you to undertake a number of steps to mitigate the potential harm to any individuals who may be affected.

States act to protect individuals against identity theft

Virginia, along with 46 other states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands, has enacted legislation requiring private-sector, governmental, and educational entities to notify individuals when there are data security breaches involving personally identifiable information. These security breach laws typically include provisions addressing:

  • Who must comply with the law (e.g., businesses, data/information brokers, and governmental entities);
  • What is considered “personal information” (e.g., a person’s name combined with his Social Security number (SSN), driver’s license, or state ID; financial account numbers);
  • What constitutes a breach (e.g., unauthorized acquisition of data);
  • What’s required with regard to notice (e.g., who must be notified and the timing or method of notice); and
  • What is exempt (e.g., encrypted information).

Virginia’s security breach notification laws include Virginia Code § 18.2-186.6 (breach of personal information), § 32.1-127.1:05 (breach of medical information), and § 22.1-20.2 (student data security). Some of the key aspects of these Virginia laws that employers should understand are set out below.

Virginia’s security breach notification laws

Who is subject to Virginia’s laws? The data breach laws apply to any individual, legal, or commercial entity that owns or licenses computerized data that include personal information and any organization supported by public funds that owns or licenses computerized data that include medical information of a resident of the Commonwealth.

What constitutes “personal information”? Virginia’s data breach laws protect the personal and medical information of Virginia residents. “Personal information” means the first name or first initial and last name in combination with and linked to one or more of the following types of information belonging to a resident of the Commonwealth, when the data elements are neither encrypted nor redacted:

  • SSN;
  • Driver’s license number or state ID card number issued in lieu of a driver’s license number; or
  • Financial account number or credit or debit card number, in combination with any required security code, access code, or password that would permit access to a person’s financial accounts.

What is “medical information”? “Medical information” means the first name or first initial and last name in combination with and linked to one or more of the following types of information belonging to a resident of the Commonwealth, when the data elements are neither encrypted nor redacted:

  • Any information about an individual’s medical or mental health history, mental or physical condition, or medical treatment or diagnosis by a healthcare professional; or
  • An individual’s health insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the individual, or any information in an individual’s application and claims history, including any appeals.

What is a “security breach”? A “breach of the security of the system” means the unauthorized access and acquisition of your unencrypted and unredacted computerized data that compromises the security or confidentiality of personal information maintained as part of your database of personal information and that causes, or you believe has caused or will cause, identity theft or other fraud affecting any resident of the Commonwealth.

Are there any exceptions? A breach of the security of your system doesn’t include the good-faith acquisition of personal information by your employees or agents if the personal information isn’t used for an unlawful purpose or subject to further unauthorized disclosure.
What is the “encryption safe harbor”? The unauthorized acquisition of your encrypted or redacted data, without access to the encryption key, doesn’t trigger the notice requirement under the statutes. The safe harbor isn’t available if personal information is encrypted but the encryption key is compromised.

What is “encryption”? “Encryption” means the transformation of data through the use of an algorithmic process into a form in which there’s a low probability of assigning it meaning without using a confidential process or key, or securing the information by another method that renders the data elements unreadable or unusable.

When are your notification obligations triggered? If a security breach causes, or you reasonably believe it has caused or will cause, identity theft or other fraud affecting a Virginia resident, notification is required.

What are the notice procedures? You must provide written, telephonic, or electronic notice to victims of a security breach without unreasonable delay, unless the disclosure would impede a law enforcement investigation (in which case notification is delayed until it’s authorized by the law enforcement agency). Notice to affected residents must contain specific information described in the statutes. You may provide substitute notice by means prescribed in the statute if your notification costs exceed $50,000, more than 100,000 people are affected, or you have insufficient contact information or do not have consent to provide notice by the primary means required by the statute.

What is “substitute notice”? Substitute notice includes all of the following:

  • E-mail notice if you have e-mail addresses for the affected residents;
  • Conspicuous posting of the notice on your website; and
  • Notice to major statewide media.

When must you notify the AG and consumer reporting agencies? You also must provide notice to the Office of the Virginia Attorney General (AG) without unreasonable delay. If you are required to notify more than 1,000 persons of a security breach at one time, you are also required to notify consumer reporting agencies without unreasonable delay.

What are your third-party notice requirements? If you maintain computerized data that include personal information you don’t own or license, you must notify the owner or licensee of any security breach without unreasonable delay following your discovery of the breach.

Are there other exemptions? You are considered to be in compliance with Virginia law if:

  • You maintain and comply with your own notification procedures as part of an
    information security policy and those procedures are consistent with the timing requirements of the Virginia data breach statutes;
  • You comply with the notification requirements or procedures imposed by your primary or functional state or federal regulator; or
  • You are subject to, and in compliance with, federal requirements under Title V of the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act of 1996 (HIPAA), or the Health Breach Notification Rule promulgated by the Federal Trade Commission (FTC).

How does Virginia enforce its notification laws? The AG may bring a lawsuit and impose a civil penalty not to exceed $150,000 for a security breach or a series of breaches of a similar nature that are discovered in a single investigation. Individuals may bring an action to recover direct economic damages resulting from a violation of the Virginia data breach statutes. Violations by state-chartered or licensed financial institutions are redressed by the primary state regulator. Violations by insurance companies are redressed by Virginia’s State Corporation Commission.

Are private lawsuits permitted? Although security breaches are generally enforced by the AG, nothing in Virginia’s data breach notification statute precludes an individual whose personal or medical information has been compromised from bringing a lawsuit and seeking recovery of economic damages.

Bottom line

The specific steps that you must follow when your security is breached can be quite complicated, as this article confirms. Accordingly, if you experience a data breach, it’s always wise to consult with legal counsel experienced in data breach laws. An experienced attorney can ensure that you are complying with all of your legal requirements. That’s significant because, as our article next month will explain, you may have obligations under federal law as well as Virginia law.

Milton Whitfield and Jayna Genti are attorneys with DiMuroGinsberg PC and contributors to Virginia Employment Law Letter. They may be reached at mwhitfield@dimuro.com or jgenti@dimuro.com.

© 2017 Used with permission of Fortis Business Media, Brentwood, TN 37027.

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Read Part 1