Legal issues
Legal issues
Order Instructions:
Assignment requested deadline April 26 by 2pm. Please read below for information concerning assignment. You may access the school’s website by logging into https://mycampus.southuniversity.edu/portal/server.pt
Read the scenario and the questions that follow. Identify the legal issue(s) and apply legal concepts and possible arguments for each question. Prepare a solution for each question using laws, cases, examples and/or other relevant materials. At the end of the paper, identify potential ethical issues and propose a solution for each issue. Support your answers with information from the textbook and at least two outside scholarly sources. By Tuesday, April 26, 2016, prepare a 5 to 8-page paper that identifies the legal issues and potential solutions and answers all questions presented, supported by relevant legal authority. Properly cite all sources using APA format.
This assignment requires application of the concepts learned in Weeks 1–3 and is worth significantly more than previous assignments.
Scenario
Will Doolittle works as a financial analyst at the corporate headquarters of Home Décor Stores in Atlanta, Georgia. Doolittle regularly spends time on the office computer sending email to his friends and playing his favorite slot machine games with the sound muted. Doolittle usually sends the personal e-mails from his own Gmail account, but he occasionally uses his Home Décor account when he doesn’t want to bother accessing his personal account.
The manager of human resources, Lida Lott, called Doolittle into her office on Friday afternoon, where he was asked about the emails sent to friends containing jokes of a sexual nature. The director also questioned him about the use of the Internet to play slot machines and other computer games. Doolittle was terminated for violating provisions of the employee handbook and escorted out of the building.
The employee handbook contained standard provisions explaining that company property, including computers, email, software and access to the Internet, were for business purposes and employee use was subject to monitoring. The company policy also prohibited any form of sexual harassment, discrimination, violence and other illegal acts, which includes transmitting such information by computer. Violations of the stated policies include disciplinary action that may result in termination. The handbook also contained a provision that required all disputes arising from the employment relationship that cannot be resolved internally to be resolved through the alternative dispute resolution process of mediation.
Angry after his dismissal, Doolittle stopped by Burger and Brew, hoping a few beers would make him feel better. Several hours later as he was on the way home, Doolittle was pulled over by Laura Norder, an officer on the local police department. Detecting a strong odor of alcohol, Norder requested that Doolittle take a breathalyzer test, but he refused. The officer spotted a beer can on the seat of the car and searched Doolittle’s car. When searching the car, the officer found a loaded handgun and an unmarked bag of pills that looked like OxyContin.
Two weeks after Doolittle was terminated, Home Décor received a phone call from the human resources department at DIY Home Innovations seeking to obtain a reference for Doolittle. Lida Lott, the human resources manager for Home Décor answered the standard questions, but when asked if she would rehire Doolittle, she made the following comment.
“Off the record, Doolittle was terminated for a cause. I would not re-hire him because he is lazy and may have been involved with drugs too.”
Lott made up the part about drugs because she did not want Doolittle to get the job. DIY Home Innovations did not hire Doolittle.
A new position in advertising was created for Lacey Fair, the granddaughter of Home Décor’s CEO. Lacey was a senior at Western University, majoring in marketing. Lacey was in charge of revamping the company’s website. Lacey copied images from various websites and pasted them into Home Décor’s site. Susan Wynns was a full time law student who worked as an intern for Home Décor. After reviewing the new and improved website, Wynns explained to Lacey that using images and text without permission violates intellectual property laws. Lacey explained that she could use the images because everything on the Internet is free for people to use. Lacey also suggested that Wynn go read about the fair use doctrine that was covered in her business law class.
After Doolittle resolved his issues with his arrest, he created a blog called Death to Home Décor. The blog contained a picture of the Home Décor logo and CEO in a casket. Doolittle promises readers that he will provide stories about working for Home Decor and invites his readers to tell their stories. In the first article, Doolittle included a cartoon of his boss flying on a broomstick. The second article provided details about a coworker who is having an affair with her manager.
Based on the different situations described in the scenario, create a 5 to 8-page Microsoft Word document that includes detailed answers to the following questions. Support your answers with sources such as examples in your textbook, cases, statutes and other scholarly information found in your research.
Doolittle claims the employer violated his rights by monitoring his personal email and use of the Internet. What are the legal rights of the employer and the employee in this situation? Explain. Is Doolittle correct in his allegations? Why or why not?
Since Doolittle believes he was wrongfully terminated and various rights were violated, he plans to consult with a lawyer and sue his employer. What are Doolittle’s options with regards to resolving his claims through the court or ADR?
Did Officer Norder violate any of Doolittle’s constitutional rights? Explain.
Has Lida Lott committed any offenses? Explain.
Did Lacey violate intellectual property laws?
Has Doolittle committed any violations in his Internet postings concerning his former company?
Discuss any ethical issues that might be present in the scenarios.
Based on the different situations described in the scenario, create a 5 to 8-page Microsoft Word document. Support your answers with appropriate research, reasoning, cases, laws, and other relevant examples.
Submit the paper in APA format and properly cite sources on a separate page using APA.
SAMPLE ANSWER
Introduction
The paper sets out to evaluate the rights and liabilities of Do little with references to human rights enacted in 1998. To help understand the case, the paper is structured in seven sections. While the paper determines whether or not there was a violation against Do little, it highlights legal options and ethical issues in resolving the dispute. In building the case, the paper will examine the intellectual property statutes referring to Lacey’s Scenario. Dolittle’s searches and seizures will be evaluated from a constitutional point of view. In the case of Lida Lott, the issue of confidentiality relative to the employer-employee relationship will be discussed.
Dolittle’s Rights under the Human Rights Act of 1998
The 1998 Human Rights Act was enacted with the intention of defining the extent and impact of the rights of an employer to monitor the communications of employees, including those conducted in the course of suing the internet and precisely, emails. The Act’s scope, however, expressly protects the rights of employers in the public sector. Under the Act, individuals are conferred with rights to enable them to sue public authorities when they strongly opine that their rights under the Act have been violated. In effect, employees of public authorities are given the mandate to sue their employers when their rights to privacy and correspondence have been breached. This is provided for under Article 8 of the Act. Dolittle was an employee of a private company, and the main question, therefore, remains whether or not the Human Rights Act of 1998 is applicable to him. On the face of it, the employees in the private sector are not expressly conferred with rights under the Human Rights Act. However, the Act provides that courts and tribunals are compelled to interpret the legislative provisions on a larger scope. This provision bestows on private sector employees the same rights as those of public authorities, albeit the fact that these rights are applicable indirectly on them.
Was there violation against Dolittle’s Rights?
Whether or not the Dolittle’s right to privacy was breached would be determined with the move by the employer to seek the consent of employees. In most cases, as was the case in Dolittle, the consent provides monitoring consisting of all communications at the discretion of the employer. In the event, an employee consents, and then the employer has the right to monitor, even beyond the durations of employment. Summarily, by consent, an employee waives their privacy rights in regards to correspondence. Given that the employee handbook had express provisions as to the monitoring standard, Dolittle consented to waive his right when he signed and accepted to work for Home Dacor. In the event there was a breach without consent, then this would create liability on the part of the employer. In the Ms. Halford case which was before the European Court of Human Rights, it was held that knowledge and consent are essential in establishing monitoring rights. Section 6 (13) of the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations of 2000 also illegalizes any interception without proper indications to the employee, before such interventions (Keh-Luh, Chi, & Chiu-Mei, 2012).
Protection of individual or employee rights on their emails, message and calls can be limited to certain scenarios (Miller, 2016). Usually, employers will be allowed to monitor such correspondence in certain scenarios; when checking if an employee is spending excessive time doing personal communications and activities such as playing games. This is because such actions would infringe on the rights of employers to get services they pay for. The second justification for allowing monitoring of employee email accounts would be to ensure offensive messages do not pass from employees to other parties. When there is a reason to believe that for instance, there are cases of sexually inappropriate material correspondences, then the employer can seek the employee’s consent to monitor their communication. Dolittle’s rights were not infringed, and his allegations are therefore unwarranted.
Alternative Dispute Resolution (ADR) Clauses and their Effects
According to the issue raised, the employee handbook contained an Alternative Dispute Resolution clause, which has the effect of seeking ADR remedies before approaching a court of law in the event of a conflict between an employee and the company, say Home Dacor. It would be very wrong to deny the parties to a contract, such as that between Dolittle and Home Dacor, their right to choose which laws apply in the event of a breach of contract. Hilty, (2015) states that the main reason why parties would agree to an ADR clause is to ensure that conflicts are not subjected to judicial proceedings until all the ADR alternatives are inadequate as to provide sufficient remedy to the offended party. In the case of AMF v Brunswick 1985 Supp. 456, a District Court held that the Federal Arbitration Act was the backbone for the implementation of ADR clauses. Under the Act, Section 2 provides that ADR clauses are to be embraced fully, and all means of dispute resolution under the ADR tier are to be fully exhausted before the matter can be lodged as a suit in a court of law. This was also the position in the case of Allied Sanitation Inc. v Waste Management Holdings Inc. 2000 Supp. 2d 320. The provision in the employee handbook to refer matters to an ADR tribunal is therefore legally binding and Dolittle is left with no choice but follow the procedures under ADR before approaching a court of law.
Dolittle’s Constitutional Rights – Searches and Seizures
The issue to consider in the Norder-Dolittle scenario is whether or not Norder searched the car after establishing probable cause, and whether or not the officer had a warrant to that effect. The 4th Amendment to the Constitution protects citizens from arbitrary searches and seizures without warrants. The rule is quite clear that it would be an outright intrusion by government agents to search if they lacked a warrant. In the landmark case of Wolf v Colorado (1949), Felix J. contended that arbitrary intrusion into an individual’s privacy by the police was a violation and against the doctrines of a free society. This was deemed a great violation of human rights, protected under the US Constitution. In issuing a warrant, a judge or magistrate is to observe discretion, but bear in mind the need for probable cause.
The test subjected in this case is, therefore, that of probable cause. In the case of Weeks v United States (1914), the Supreme Court found that evidence collected without probable cause or warrant was to be regarded as illegally obtained, hence inadmissible as evidence is court. In another case of United States v Leon (1984), the Supreme Court held that even in the rare exceptions, judges were tasked with the responsibility of determining probable cause, and not police officers or other government agents. There has been an evolution of case laws, which have directed that there is an exception to the warrants rule. In United States v Ross (1982), the Court of law ruled that police officers had the authority to search a vehicle entirely, only in the event they had probable cause to suspect there were drugs in the car (Oprea, 2012). This befits this scenario perfectly, and Norder had probable cause when she saw a can of beer on the car seat.
Lida Lott’s Duty of Confidentiality
This question addresses a very precise legal relationship, which is the existence of an employer-employee relationship, and the duty of confidentiality bestowed on the part of the employer. Definitely, by signing the employment contract, there is a relationship between Lida Lott and Dolittle. Jurisprudence has indicated that before an employer, whether during the time of employment or after termination, has to seek the consent of the employee before providing any information to third parties unless the information sought is with regards to disclosure on the title at the workplace, wages, and salary or date of employment. This was the determination in the case Magnano v Bellsouth Telecommunications Inc. (1992). The case of Conkle v Joeng (1995) also discusses the case of giving information to a prospective employer. It was held that information given to future employers has to be in good faith for the previous employer to escape civil liability. It is, therefore, clear that Lott is liable for giving malicious information to Dolittle’s prospective employer.
Intellectual Property Laws – Lacey’s Scenario
According to the facts provided, Lacey copied images from various sites and used them develop Home Dacor’s website. She later claims that the law of fair use applies to her. First, it is necessary to note that the fair use of doctrine applies to any copyrighted work, and that include internet postings and materials. However, as was decided in Basic Books v Kinko’s Graphics Corporation (1991) fair use can only be involved in the event of infringement allegations, especially when materials sought are educational, and not profitable (Kaplin & Lee, 2011). The Copyright Act provides for certain factors that the court considers fair use because of the nature of copyrighted works, the amount of materials retrieved and effects of using such material. This means that Lacey was infringing copyright law, and cannot invoke the fair use doctrine, as the website was not non-profitable, but used to market the company (Diane, 2016).
Dolittle’s Liability
Just like the employer has a duty to exercise confidentiality, employees who leave an organization still carry the duty to keep the secrets of that company, and are not supposed to disclose such information to the public (Yerby, 2013). Equal measure of obligations will be required under employer-employee confidentiality requirements. Dolittle can also accrue civil liability by the fact of defaming his former CEO.
Ethical issues
The fact that the employer monitors Dolittle’s internet usage and personal emails is an ethical issue. Monitoring internet usage and personal emails in workplace can put workers and employers at odds because the two parties are trying to safeguard their interests. Workers want to protect their privacy and employers aim at making sure that resources are not misused. Therefore, the solution to this issue is ensuring ethical monitoring of workers by ensuring that monitoring workers’ intern usage is not indiscriminately conducted. Employers monitor employees online activities to safeguard their firms from legal issues that may emerge due to illegal use of computers. Moreover, employers are also worried about declining productivity as some workers use the internet to do their personal tasks (Oprea, 2012). The ethical issue that organizations experience when safeguarding their interests when motoring workers’ internet use is ensuring that they do not it that workers lose their privacy in place of work.
Conclusion
The paper determined to evaluate the rights and liabilities of Dolittle. The human rights enacted in 1998 informed the basis if the discussion. Apart from determining whether or not Dolittle’s rights had been breached, there was a window to redressing the issue. The Lacey’s scenario was used in used evaluate the intellectual property laws. Again, the searches and seizures for Dolittle’s scenario were cross-examined from a constitutional perspective. Lastly the employer-employee relationship was evaluated with reference to the Lida Lott case.
References
Diane, P. (2016). Intellectual Property Rights in an Age of Electronics and Information. DIANE Publishing Company.
Hilty, L. M. (2015). Ethical issues in ubiquitous computing—three technology assessment studies revisited. In Ubiquitous Computing in the Workplace (pp. 45-60). Springer International Publishing.
Kaplin, W. & Lee, B. (2011). The Law of Higher Education. New York: John Wiley and Sons Publishing Corporation.
Keh-Luh, W., Chi, C., & Chiu-Mei, T. (2012). Integrating human resource management and knowledge management: from the viewpoint of core employees and organizational performance. International Journal Of Organizational Innovation, 5(1), 109-137.
Miller, R. (2016). Cengage Advantage Books: Business Law Today, The Essentials: Text and Summarized Cases. New York: Cengage Learning.
Oprea, M. (2012). An Agent-Based Knowledge Management System for University Research Activity Monitoring. Informatica Economica, 16(3), 136-147.
Yerby, J. (2013). Legal and ethical issues of employee monitoring. Online Journal of Applied Knowledge Management, 1(2), 44-55.
