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A case filed in the U.S. District Court in Tennessee illustrates the growing liability risks associated with cyber bullying. The parents of a middle school boy have filed a complaint against the Williamson County Board of Education and thirty-one of their son’s classmates. 

The plaintiff was born in Ethiopia and was adopted in 2010 which is when he enrolled at Grassland Middle School. By 2012 a number of students allegedly engaged in a pattern of cyber bullying that included racist and profane statements, photographs and a racist death threat.

The Complaint alleges violations of the Civil Rights Act of 1964 and the Tennessee Bullying Prevention Act. Tennessee, along with several other states, has directly addressed the problem of cyber bullying. Children and teenagers today spend large amounts of time on cell phones, instant messaging, Facebook and other online activities. It is estimated that almost half of American teens have experienced some form of cyber bullying.

The Tennessee statute defines cyber bullying as bullying that takes place using electronic technology. Examples may include mean text messages or emails, rumors sent by email or posted on social networking sites, and embarrassing pictures, videos, websites or fake profiles. The statute also requires that school districts develop a policy prohibiting cyber bullying along with implementing procedures for the prompt investigation and remedial action as a consequence for a person found to have committed an act of cyber bullying.

In the Mihnovich case, the plaintiff was harassed via text messages with racial and profane statements  by thirty-one of his classmates. A public Facebook page was created as a forum for the students to make racist comments about the plaintiff. In response, the plaintiff’s parents contacted the school to discuss what the school should do to protect the plaintiff. Allegedly the school advised the parents and subsequently their attorney, through a letter that is annexed to the Complaint, that the school system was not required to take any action. 

The school took the position that there was no proof that the actions occurred during school hours. However, the plaintiffs allege the school had an affirmative duty to investigate and take disciplinary action against the perpetrators of hate speech regardless of where the speech originated because it was reasonably foreseeable that such hate speech would interfere with the plaintiff’s education, opportunities and performance.

As the Tennessee statute demonstrates, the law has caught up with cyber bullying. Massachusetts also has a law prohibiting cyber bullying as well as procedures in place for schools to develop and implement a policy to address the existence of bullying in its schools. In Mihnovich, the plaintiff is seeking $1.1 million in compensatory damages as well as punitive damages. Access to smartphones, Facebook and other internet sites is only going to increase and parents and schools should not ignore the potential legal liability posed by cyber bullying. 

A recent unpublished decision by the Massachusetts Appeals Court highlights the treatment of the at-will employment doctrine in Massachusetts.  See Nelson v. Anika Therapeutics, Inc., et al., 2012-P-0361 (memorandum and order pursuant to Rule 1:28, April 22, 2013).

Plaintiff was a quality control manager at a medical device company and claimed she had been wrongfully terminated. A routine inspection by the FDA resulted in a warning letter which stated the company was in violation of several federal regulations which required corrective action.  Employer alleged Plaintiff was fired as a direct response to the failures identified in the FDA inspection, many of which were attributable to plaintiff.

Plaintiff was an at-will employee. Under Massachusetts law, employment at-will can be terminated for any reason or for no reason. There are several recognized exceptions to this rule including when employment is terminated contrary to a well defined public policy. Firing an employee for enforcing safety regulations for which she was responsible has been held to meet that exception.

In response to the FDA warning letter, plaintiff stated she requested additional staffing in addition to communications aimed at fixing the violations found by the FDA. Plaintiff argued these actions should fall into the public policy exception described above.

The trial court held that plaintiff’s request for additional staff was merely a disagreement with company policy. The trial court then granted summary judgment for the employer because plaintiff’s conduct did not implicate public policy and thus was not within the realm of the public policy exception regarding whistleblowers.

The Appeals Court agreed with the trial court’s ruling. Massachusetts law does not protect at-will employees who claim to be fired for their complaints about internal company policies or the violation of company rules. There is a distinction between actions taken to enforce safety regulations and actions taken as a result of a disagreement with company policy, even if the employee’s actions may be considered appropriate and socially desirable. 

The I –team of the local CBS affiliate reported today that Massachusetts state regulators Office of Consumer Affairs have been dispatched to check on local health clubs’ compliance with consumer disclosures. More specifically, the regulations require that consumers be advised of their right to cancel. 

Massachusetts General Laws c. 93 sec. 81  provides:

“Every contract for health club services shall provide clearly and conspicuously in writing that such contract may be cancelled within three business days after the date of receipt by the buyer of a copy of the written contract or written receipt indicating the buyer’s payment for health club services. The contract for health club services shall contain the following written notice in at least ten point bold type:

‘CONSUMER’S RIGHT TO CANCELLATION. YOU MAY CANCEL THIS CONTRACT WITHOUT ANY PENALTY OR FURTHER OBLIGATION BY CAUSING A WRITTEN NOTICE OF YOUR CANCELLATION TO BE DELIVERED IN PERSON OR POSTMARKED BY CERTIFIED OR REGISTERED UNITED 

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STATES MAIL WITHIN THREE (3) BUSINESS DAYS OF THE DATE OF THIS CONTRACT OR THE DATE OF YOUR RECEIPT TO THE ADDRESS SPECIFIED IN THIS CONTRACT.’

The Office of Consumer Counsel Offers the following explanation of the law pertaining to health club memberships:  

“The Right To Cancel

By law, the following notice must be clearly written on the contract:

Consumers’ Right to Cancellation. You May Cancel This Contract Without Any Penalty or Further Obligation by Causing a Written Notice of Your Cancellation to be Delivered in Person or Postmarked by Certified or Registered United States Mail Within Three (3) Business Days of the Date of This Contract or the Date of Your Receipt to the Address Specified in the Contract.

You may also cancel your health club contract for any of the following reasons:

•You move your residence or your place of employment more than 25 miles from any health club operated by the seller, or a similar club that will accept your membership;

•Upon a doctor’s order, you cannot physically or medically receive the services because of significant physical or medical disability for a period in excess of three months;

•In case of your death; or

•The health club services promised are not available due to:

■failure to open a planned health club or location;

■closing of a health club or location; or,

■substantial change in the operation of a health club or location.

How To Cancel:

Send by certified mail, return-receipt requested, or deliver in person, a written notice of your cancellation. Clearly state that you are canceling the contract, as is your right under M.G.L., c. 93, section 81.

The notice of cancellation must be accompanied by

•all contract forms;

•all membership cards;

•all other documents or evidence of membership; and,

•reasonable evidence of the reason for the cancellation, if it is beyond the 3 day cooling-off period.

All money must be refunded within 15 days of the club’s receipt of your notice of cancellation. However, the club may retain that part of the total contract price proportional to the amount of time that you used the services or facilities prior to cancellation. After cancellation, you are no longer liable for any further obligation under a credit loan agreement which was executed to pay for all or part of the price of the health club contract.” See Office of Consumer Affairs and Business Regulation publication “Making Health Clubs Work for You”

Massachusetts businesses need to make certain that they are in compliance with the consumer laws, or they may face fines from regulators and potential civil litigation where willful violations may subject violators to double, or even treble damages plus attorney’s fees. 

 

ethernet2.jpgA new ethics opinion has Massachusetts lawyers scrambling to analyze the ethical risks of data loss associated with cloud computing.  In Opinion 12-03 [Click Here] The Committee on Professional Ethics of the MBA, addressed:

 “whether it would violate Lawyer’s obligations under the Massachusetts Rules of Professional Conduct to store confidential client information using Google docs or some other Internet based storage solution, and to synchronize his computers and other devices that contain or access such information over the Internet”.

After analyzing its prior opinions and those of other ethical advisory bodies, the Committee concluded that lawyers may use an internet-based service provider to store confidential client data so long as reasonable efforts are undertaken to comply with the obligation to keep client information confidential.

According to the Committee opinion, “reasonable efforts” include:

(a)    examining the provider’s terms of use and written policies and procedures with respect to data privacy and the handling of confidential information;

(b)   ensuring that the provider’s terms of use and written policies and procedures prohibit unauthorized access to data stored on the provider’s system, including access by the provider itself for any purpose other than conveying or displaying the data to authorized users;

(c)   ensuring that the provider’s terms of use and written policies and procedures, as well as its functional capabilities, give the Lawyer reasonable access to, and control over, the data stored on the provider’s system in the event that the Lawyer’s relationship with the provider is interrupted for any reason (e.g., if the storage provider ceases operations or shuts off the Lawyer’s account, either temporarily or permanently);

 (d) examining the provider’s existing practices (including data encryption, password protection, and system back ups) and available service history (including reports of known security breaches or “holes”) to reasonably ensure that data stored on the provider’s system actually will remain confidential, and will not be intentionally or inadvertently disclosed or lost; and

(e) periodically revisiting and reexamining the provider’s policies, practices and procedures to ensure that they remain compatible with Lawyer’s professional obligations to protect confidential client information reflected in Rule 1.6(a).

The Boston technology lawyers at Raymond Law Group LLC  regularly work with clients to address technology, privacy and data loss issues in Boston and throughout Massachusetts.