Alaska Employment Law

Occupational licensing:  The Alaska Supreme Court has upheld the Architect Board’s denial of an applicant’s claim that his unverified work experience fulfilled the requirements for a waiver of an exam.  

The Court (unanimously, per Justice Winfree) held that the Board’s requirement for third-party verification of experience (contained in the application form instructions) was not a “regulation” subject to APA rule-making procedures.  The Court also held that the Board’s construction of the statutory phrase ”evidence satisfactory to the board” (e.g., the verification requirement in the application instruction form) was a matter involving agency expertise, and thus a matter of judicial deference unless unreasonable.  Finally, the Court reiterated that the right to work in a particular industry is an “important” right for state EP purposes (State v. Enserch), but one subject to  reasonable regulation.   The Court, thus, affirmed the Board’s adoption of the opinion by ALJ David Stebing.

Squires v. Alaska Board of Architects, Engineers & Land Surveyors, Op. No. 6364 (Alaska Apr. 17, 2009)

Doug Mertz and Bill Cummings from Juneau represented the architect.  Jenna Rohn Conley, Juneau AG, represented the Board.

Computer porn:  Is it unethical for an attorney to assist an employer in destroying computer pornography?  Doesn’t the employer, in fact, have a duty to at least remove it from employee view, which is, in a form, destroying it?

Here are the reported facts in a recent wrongful termination lawsuit brought by the attorney, according to Legal Ethics Forum blog:

A Massachusetts lawyer discovered child pornography on a client’s computer and told his firm about it. The firm instructed the lawyer to destroy the child pornography, and the lawyer refused to do so. The lawyer (correctly, in my view) explained that the firm could not conceal or destroy evidence of a crime. The firm then fired the lawyer for failing to follow instructions. The lawyer subsequently revealed the child pornography to the FBI and sued the law firm for wrongful termination.

A Massachusetts trial court dismissed the wrongful termination claim, observing that the claim would lead to the disclosure of privileged or confidential information. An appeals court disagreed and has held that the claim may proceed.

Put aside the lawyer’s wrongful termination claim, and look at the question from the viewpoint of attorney advice to the client.  Isn’t the correct solution for an attorney in the position described in the squib to advise the employer to 1) remove the pornography from employee access (to avoid possible Title VII liability, and to avoid participating in an ongoing crime); 2) to preserve evidence of the crime; and 3) to consider reporting the matter to law enforcement?  (And start the personnel action concerning the porn-watching employee.) 

If the employer promptly removes the pornography from circulation, does either the employer or the attorney have any duty, under either the Rules of Professional Conduct or some criminal law, to report the matter to law enforcement?  (Is pornography an exception to the general rule?)  In fact, if the employer removes the pornography but preserves the evidence, isn’t the attorney ethically barred from reporting the matter to law enforcement, absent the client’s permission, under RPC Rule 1.6?  It’s the law firm’s direction to destroy the evidence rather than simply have the employer-client remove it from circulation that was improper, right?

Is pornography at the workplace sufficient to state a Title VII claim?  See the next item.

9th Circuit defines “adverse employment action”:  Imposition of an “adverse employment action” is the injury threshhold for discrimination and retaliation claims by employees.  In an opinion Tuesday morning, the 9th Circuit identified several employer actions that are not sufficiently “adverse” to trigger liability:

Adverse employment actions may include any decision by an employer affecting “compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1); see, e.g., Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004). Mischel fails to show how her employers’ actions affected her compensation, terms, conditions, or privileges of employment when allegedly she was not provided a uniform shirt that fit, male employees used “her” bathroom, male employees viewed pornography at work, she was counseled regarding interpersonal relationships, or she argued with a male co-worker. Further, the record shows that Mischel’s alleged janitorial and clerical duties were neither ”more burdensome” nor “more work” than similar duties assigned to her male co-workers.”

Michel v. Caithness Operating Company, 2009 WL _______ (9th Cir. May 5, 2009)(unpub.)(emph. added)