REPORT FROM COUNSEL

SPRING 2008 ISSUE

FAMILY RESPONSIBILITIES DISCRIMINATION CLAIMS AT THE FOREFRONT IN 2008

By Anne E. Zerbe, Esquire--Chair Employment and Labor Law Department/Co-Chair Litigation Department

In recent years, there has been a significant increase in cases involving "family responsibility discrimination" (FRD). According to a study performed by the University of California-Hastings Center for Work Life Law, the number of FRD cases increased by 400% from 1996 to 2005. FRD cases usually involve employees of both sexes, who allege that they were discriminated against by their employer because of their family caregiver responsibilities.

Most cases involve claims under Title VII, which does not protect family caregivers as a separate class, but prohibits discrimination based on gender. Out of the FRD cases has come a general prohibition against "sex plus" or quote "gender plus" discrimination which involves a policy or practice by which an employer classifies employees on the basis of sex plus another characteristic, such as motherhood or pregnancy. It is possible to support a claim based on discrimination against the sub-class of men or women, and not just the class of men or women as a whole.

However, FRD are not limited to employees with young children. Employees with family care giving responsibilities include: employees who take care of a family member such as a spouse, partner, minors, and adult children with physical or mental conditions. Employers need to be aware of the implications and issues surrounding employees with family care giving responsibilities, especially those issues involving Family and Medical Leave, promotion of employees with family care responsibilities and the application of policies, unmodified work schedules, flex time and telecommuting options.

Some of the more well known FRD cases involve comments and statements by employers reflecting the view that mothers do not belong in the workplace and that fathers do not belong in the role of family care giver.

FRD cases also arise when a policy that appears to be neutral on its face (such as limitations on leave, attendance policies, and promotion requirements) has a disparate impact when applied to employees with family care giving responsibilities. Other FRD cases have evolved out of employment decisions based on the assumption that employees with care giving responsibilities will have limited productivity or attendance problems, or will not be dedicated to the work because of the family obligations.

How Can You as an Employer Reduce Your Risk of FRD Claims?

You, the employer, should adopt a family responsibility antidiscrimination policy or add a prohibition against family responsibility discrimination to your current antidiscrimination policy. Ensure that all your policies are administered fairly and equally among both genders and both employees with family care giving responsibilities and employees without family care giving responsibilities. In other words, you as the employer should not terminate a pregnant employee for violating the no-call/no-show policies when others who are not pregnant were terminated for violating the same policy.

Implement training with all employees to review the prohibition against sexual harassment and discrimination, and to educate employees about the prohibited discrimination on the basis of family care giving responsibilities. Also, educate supervisors and managers about family responsibilities discrimination, and insist that all personnel decisions must be based on legitimate business needs and individual performance, not on stereotypes and biases. Even if you as the employer is acting in a manner in which you think is in the best interest for the employee, such as bypassing up a new mother or new father for a promotion because of the increased work demands.

For more guidance on the subject, you should consult the Equal Employment Opportunity Commission (EEOC) "Enforcement Guidance" which was published on FRD. The Enforcement Guidance is available at www.eeoc.gov.

For a review of your business' antidiscrimination/harassment policy contact the Employment Law Department of CGA Law Firm at 717.848.4900.

COMPUTER FRAUD AND ABUSE ACT UPDATE

By Christian J. Dabb, Esquire

The federal Computer Fraud and Abuse Act (CFAA) is most closely associated with criminal prosecutions brought by the Department of Justice. But the CFAA also provides for a civil cause of action for anyone who suffers damage or loss because of a violation of the statute. In light of the expansive reading that some courts have given to the law, victimized companies should give consideration to taking the civil route. A civil lawsuit gives the wronged party more control and may provide a quicker fix. By means of such a lawsuit, the victim can retrieve stolen data, enjoin illegal access to data, and even get compensatory damages for the theft and destruction of data.

The CFAA applies to all companies and all computers that are connected to the Internet. Potentially, there are multiple, distinct types of violations of the statute that could support a civil action. On a recurring issue in such cases- whether the defendant had authorization for his actions-the courts look at several factors:

* whether the defendant was an agent of the plaintiff's, with particular powers;

* whether an employment contract, such as may have been embodied in company rules and policies, was breached; and

* whether the defendant's use of the computer exceeded normal use that was expected by the plaintiff.

Recent Court Decisions

A real estate business was allowed to proceed with a civil action against a former employee for violations of the CFAA. In violation of his employment contract, the employee decided to quit and start a competing business. Before he returned the company's laptop, he deleted all of the data in it, including data that would have revealed his misconduct. Knowing that "deleted" files can be retrieved, he erased the incriminating data by loading into the laptop a secure-erasure program.

All of this, if proven in court, violated the CFAA as "transmission" of a program that damaged the computer (defined to include files in the computer), and as intentionally accessing the computer without authorization. Although the employee had not yet left his job when he installed the program, by law any authorization he might have had evaporated as soon as he violated the duty of loyalty to his employer.

In another case brought under the CFAA, a tour company secured an injunction against a competing company run by one of its former employees. The ex-employee improperly used confidential information from his former employer to enable his new company to glean pricing data from his former employer's website, so that his new enterprise could effectively undercut those prices.

Although the website was open to anyone, the unauthorized use of the confidential information, combined with the use of a "scraper" software program, violated the CFAA. On top of the injunction, the plaintiff could recover, as a compensable "loss" under the CFAA, the thousands of dollars it had paid in computer consultant fees for diagnostic work after the defendant's conduct was discovered.

FIRM UPDATES

Honors, Awards and Appointments

Super Lawyer for a 3rd Year

Its official, Lawrence V. Young has been named a "Super Lawyer" for the third consecutive year by the Pennsylvania Super Lawyers, a joint publication of Philadelphia Magazine and Law & Politics. Only the top 5% of attorneys who have attained a very high degree of peer recognition and professional achievement in the state are represented by Super Lawyers. Compiled annually, the final list of candidates is determined through a careful polling, selection and verification process.

Margaret "Mieke" Driscoll has been selected by the YWCA as a recipient of the "2008 Young Women Who Make a Difference Award". She will be recognized for this honor on Thursday, April 24, 2008 during a dinner at the Yorktowne Hotel. Congratulations, Mieke for your commitment to empowering women in our community.

The York County Bar Foundation honored CGA Law Firm with a Special Recognition Award for generous donation and support of MidPenn Legal Services family law. Lawrence V. Young graciously accepted the award on behalf of CGA Law Firm at the annual bar association dinner. Craig Sharnetzka was also recognized at the event for his commitment to providing legal services to low-income individuals through his pro bono work. He is the recipient of the Special Pro Bono Award for outstanding community service.

MidPenn Legal Services appointed attorney Thomas D. O'Shea to the Board of Directors. A non-profit, public-interest law firm, MidPenn Legal Services is dedicated to providing low-income residents and survivors of domestic violence with equal access to justice and high quality legal services.

Attorney Frank H. Countess has been elected to serve a three-year term on the Board of Governors for the Lafayette Club.

Benjamin L. Pratt, attorney for CGA Law Firm, was appointed to the Board of Directors for The York-Adams Area Council Boy Scouts of America, one of more than 300 local councils throughout the United States promoting and supporting scouting. He was also appointed to The Pennsylvania School Board Association (PSBA) Labor Task Force. The task force is designed to gather testimony, conduct research and make recommendations on how Pennsylvania schools should handle strikes.

Events and Speaking Engagements

The York Society for Human Resource Management is hosting a half day seminar March 11, 2008 on "Dealing with Employee Issues". Topics for the seminar include Managing Disability and Leaves. Attorney Anne E. Zerbe will speak on negotiating the maze of ADA, FMLA and WC laws and other leaves of absences. To register for the seminar go to www.yshrm.org/cgi-bin/events.cgi.

Attorney Anthony T. Bowser will present at the upcoming seminar "Employment Law from A to Z in Pennsylvania" in Lancaster on March 27, 2008. He will be speaking on the topic of "Leave" including family and medical leave policies, ADA and worker's compensation, victim's assistance, and other leaves. He will also speak on "Payroll Practices, and Wage and Hour" including exemptions from overtime, salaried exempt vs. salaried nonexempt, time cards and time sheets, and on-call time. To register for this seminar, visit www.lorman.com. The seminar ID number is 377748.

Attorney Thomas D. O'Shea was a recent presenter at the National Business Institutes course on "Preventing Critical Financial Mistakes during Divorces" in Harrisburg. Tom spoke specifically on the topic of "Failure to understand tax consequences of assets" to a group of attorneys, accountants, certified divorce specialists and planners. Tom is the Chair of the Family Law Practice at CGA Law Firm where he has been practicing family law for more than 20 years.

Anne E. Zerbe spoke to a group of women business owners on the topic of "Legal Compliance: What every business needs to know for 2008" at the first-ever program offered by the Women's Business Center of the J.D. Brown Center for Entrepreneurship at York College. She also spoke to the Physicians Office Managers Association of York (POMAY) on the topic of "Employee Retention and Reducing the Risk of Litigation." Anne also presented on the topic of Employee Handbooks to the Employee Relations Counsel.

CGA Law Firm hosted the York County Paralegal Association's monthly meeting in February where attorney Lawrence V. Young presented to members of the association on the topic of "Code of Ethics" with an emphasis on conflict of interests.

Over the past few years, CGA Law Firm has expressed our gratitude to school board members for their devotion and commitment to education through educational children's books about government, civics and good citizenship. At this year's School Directors' Dinner, CGA presented attendees with the book, Woodrow for President, written and illustrated by the husband and wife team, Peter W. Barnes and Cheryl Shaw Barnes. Woodrow for President teaches children about community service, voting and elections, from presidential to local. The books illustrator, Cheryl Barnes, was on hand at the event to sign and personalize books.

LAW DAY 2008

Established in 1958, Law Day is observed on May 1st throughout the United States. This year's theme in Pennsylvania is "Growing Strong Citizens" sponsored by the York County Bar Foundation.

As part of the Law Day celebration the bar foundation is holding an essay contest for students in grades 9 through 12 and a poster contest for students in the 7th and 8th grades for more information on the contest log on to www.york lawday.org.

Attorneys from CGA Law Firm will be visiting classrooms in April and May to educate children on their legal rights and responsibilities. If you are a teacher and would be interested in an attorney visiting your classroom, please contact Toby Gwinn at 848.4900.

GUIDING YOUR SUCCESS SEMINAR SERIES

CGA Law Firm continues to bring you educational seminars designed to provide you with the latest tips, techniques and strategies to guide your business into the future. The following topics will be presented in May.

May 20: So You Want to Grow Your Business . . .--Presented by: John Flinchbaugh, Jeffrey Rehmeyer II, Andrew Paxton

May 21: When Your Customer Goes Bankrupt, How to Protect Yourself--Presented by: Lawrence V. Young

May 22: Tips on Acquiring Commercial Real Estate--Presented by: Frank H. Countess

Look for more details to follow. To make sure you receive information on upcoming seminars and events, email your name and mailing address to Toby at tgwinn@cgalaw. com.

ANNOUNCEMENTS

CGA Law Firm welcomes five bundles of joy to our family: Charlotte, Sheila Margaret, Peyton James, Emma Michelle and Annalesa Regan.

Charlotte was born on December 20, 2007 in Atlanta, GA. She is the first grandchild of Lawrence V. Young and his wife Tina.

Sheila Margaret was born on January 9, 2008, at 11:42 a.m. She is the baby sister of Moseley and Jack and the third child of attorney Margaret "Mieke" Driscoll and her husband, John Driscoll.

Peyton James was born on January 16, 2008, weighing 6 lbs., 3 oz. He is the first child of Ryan Sweitzer, legal assistant, and his wife, Jessica Sweitzer.

Emma Michelle was born on January 28, 2008, weighing 6 lbs., 12 oz. and 20 inches. She is the first grandchild of Tina Werner, bankruptcy paralegal.

Annalesa Regan was born on January 30, 2008. She is the sixth granddaughter of Pamela O'Neal, administrative assistant.