Thursday, April 30, 2015

Social media protection for Virginia employees

The General Assembly passed and Governor McAuliffe signed legislation with these provisions:

"An employer shall not require a current or prospective employee to:
1. Disclose the username and password to the current or prospective employee's social media account; or
2. Add an employee, supervisor, or administrator to the list of contacts associated with the current or prospective employee's social media account. . . .

If an employer inadvertently receives an employee's username and password to, or other login information associated with, the employee's social media account through the use of an electronic device provided to the employee by the employer or a program that monitors an employer's network, the employer shall not be liable for having the information but shall not use the information to gain access to an employee's social media account. . . .

 An employer shall not:
1. Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his rights under this section; or
2. Fail or refuse to hire a prospective employee for exercising his rights under this section."

The statute defines "social media account" as "a personal account with an electronic medium or service where users may create, share, or view user-generated content, including, without limitation, videos, photographs, blogs, podcasts, messages, emails, or website profiles or locations." A "social media account" does not include "an account (i) opened by an employee at the request of an employer; (ii) provided to an employee by an employer such as the employer's email account or other software program owned or operated exclusively by an employer; (iii) set up by an employee on behalf of an employer; or (iv) set up by an employee to impersonate an employer through the use of the employer's name, logos, or trademarks."

The term "employer" is defined to include "(i) any unit of state or local government and (ii) any agent, representative, or designee of a person or unit of government that constitutes an employer."

Tuesday, April 14, 2015

More on Daubert

In Padula-Wilson v. Wilson, the Court of Appeals in an unpublished opinion by Judge Decker decided the appeal of a custody case between two lawyers.

Among other things, the Court held that the trial court erred by its reliance on the opinions of a non-testifying expert that were cited by a testifying expert, and by its explicit reliance on Daubert as the standard for the admissibility of expert testimony. Related to Daubert, the opinion cites Justice Kelsey's article, Virginia’s Answer to Daubert’s Question Behind the Question, 90 Judicature 68 (2006).

I don't recall another case that has made the point any more explicitly, that not only is Daubert not the law of Virginia, but also its use may be reversible error in Virginia state court, and was reversible error in that case.

Friday, March 27, 2015

On the BVU ex-employee

I read online that a fellow who used to work for Bristol Virginia Utilities has entered a guilty plea to federal charges involving money. That guy was a good friend of mine back when I was helping out as their junior varsity counsel and the fiber optic network was still in the works. I went with his group to meetings related to municipal broadband in Georgia, Maryland, and Charlottesville. He might have been with us when we went up to hear the argument in the Missouri preemption case before the United States Supreme Court. I sat next to him at most of the board meetings that I attended. As with a few others I have known who broke bad but were good to me, he was wrong to get into such a mess and it is upsetting that he must have caused a terrible hardship to my other friends who worked there, yet if we ever meet again he should not be surprised if I shake his hand and ask him if he has time to sit down and tell a few stories.

At my Grandma Minor's funeral, the story was told about how she would go into the jail and pray with the ladies there and one day she came across a young woman who had been in her group of Baptist girls at the church. 

"It could have been," the minister said, "an awkward moment. But Ms. Minor didn't hesitate. She lifted her up! She told her it was good to see her, and they had a fine time together."

On a good day, I follow her example.

Friday, March 20, 2015

Fourth Circuit requires writ of habeas corpus in Richmond murder case

In Lee v. Clarke, the Fourth Circuit in an opinion by Judge Gregory, joined by Judges Motz and Wynn, reversed the denial of the petitioner's claim for a writ of habeas corpus, concluding that that he was denied effective assistance of counsel by his lawyer's failure to request a "heat of passion" jury instruction in his murder case, which was tried in the Circuit Court for the City of Richmond in 2008.

Wednesday, March 18, 2015

Yelp wins in the Fourth Circuit

In Westlake Legal Group v. Yelp, Inc., the Fourth Circuit in an unpublished per curiam opinion for the panel of Judges Shedd, Floyd, and Thacker held that claims under Virginia law against the popular consumer review website Yelp were barred by section 230 of the Communications Decency Act.

Thursday, March 12, 2015

He said it

"[F]ormal rulemaking is the Yeti of administrative law."

Thomas, J., concurring, in Perez v. Mortgage Bankers Association, No. 13-1041, slip op. at 18 n.5 (U.S. March 9, 2015).

Artificial insemination performed at home

I listened to the argument just now by my friend Monica Monday and others in a case before the Court of Appeals, where the issue is whether artificial insemination performed at home using kitchen utensils meets the statutory definition for "assisted conception," which under Va. Code § 20-156 "means a pregnancy resulting from any intervening medical technology, whether in vivo or in vitro, which completely or partially replaces sexual intercourse as the means of conception. Such intervening medical technology includes, but is not limited to, conventional medical and surgical treatment as well as noncoital reproductive technology such as artificial insemination by donor, cryopreservation of gametes and embryos, in vitro fertilization, uterine embryo lavage, embryo transfer, gamete intrafallopian tube transfer, and low tubal ovum transfer." The panel seemed to be skeptical about whether the home procedure qualified as "intervening medical technology."

Thinking about the case, I was reminded of the wisdom of my friend Fred Rowlett, who explained to me some years ago that every stage of the human experience passes through the Virginia Court of Appeals.

Monday, March 09, 2015

On raising the mandatory retirement age for state court judges in Virginia

The General Assembly has passed legislation that would raise the retirement age for Virginia judges from 70 to 73. It applies to "justices of the Supreme Court of Virginia and judges of the Court of Appeals of Virginia effective July 1, 2015," and "those judges of the circuit, general district, and juvenile and domestic relations district courts who are elected or appointed to an original or subsequent term commencing on or after July 1, 2015."

In the past, I always wondered whether at the back of such legislation were old lawyers who wanted to finish their careers as judges, but I have not heard anyone say that in a while.

Locally, the federal Judges Dalton, Widener, Turk, Williams, and Michael all kept working long past the age of 73, and the current order for the division of cases in W.D. Va. shows that the three W.D. Va. judges over the age of 73 (who shall remain nameless) are still taking all the cases from the Abingdon, Big Stone Gap, Lynchburg, and Danville divisions, and some of the Roanoke and Charlottesville cases.