Thursday, July 18, 2013

An Employee Terminated For Not Cooperating in an Internal Investigation Does Not Automatically Constitute A Wrongful Termination

Recently a supervisor working for a California company was fired for not cooperating with his employer’s investigation regarding a subordinate’s claim against him for discrimination and harassment. The supervisor had criticized the subordinate’s work performance and the subordinate responded in turn by complaining to human resources that the criticism was a result of sexual discrimination and harassment.

An external investigator was hired to conduct the company's internal investigation. The investigator determined that the supervisor intentionally misrepresented some facts and was uncooperative during the internal investigation. As a result of this report, the supervisor was terminated. The supervisor then filed a lawsuit against his employer stating that he was wrongfully terminated for participating in the investigation.

The court applied California’s Fair Employment and Housing Act (FEHA) to the facts and issues and concluded that FEHA did not shield an employee against discipline, up to an including termination, for misconduct during an employer's internal investigation of a discrimination claim. Employees have a duty to be truthful and cooperate with their employers in an internal investigation; otherwise, the employer can discipline or terminate that uncooperative employee.

As employers, if you have questions pertaining to questionable conduct from an employee participating in an internal investigation, then contact Ronnie Gipson by telephone at 415.692.6520 or by email at Gipson@higagipsonllp.com.

Monday, July 1, 2013

Government Officials Conducting Questionable Searches of General Aviation Aircraft

As we near the half way mark of 2013, the aviation community has seen a startling trend emerge – there are a growing number of reports from law abiding airmen being stopped by armed federal agents on the ramp and their aircraft being searched without a warrant.  The agency reportedly conducting the searches is the U.S. Department of Homeland Security (DHS) Customs and Border Protection Division. 

 The searches seem to be targeted at General Aviation and have raised concerns regarding privacy and civil rights intrusions by the Federal Government.  To place these searches into context, a little education is required.  The Fourth Amendment to the U.S. Constitution protects people from searches by the government without a warrant.  The Amendment further provides that a warrant may be issued only upon probable cause.  Cases decided in our Fourth Amendment jurisprudence history stringently adhere to the warrant requirement for a search of a person’s property such as an automobile.  However, there are exceptions to the warrant requirement that allow government actors to conduct a search without a warrant. 

There exist a lot of questions about whether the searches are properly authorized because the reported searches were conducted by armed Customs and Border Protection agents at airports a significant distance away from the U.S. border such as in Iowa City, IA.  The Aircraft Owners and Pilots Association (AOPA) along with the Experimental Aircraft Association (EAA) have both demanded official responses from officials at the highest level of DHS with no response.  The affected airmen and AOPA have filed Freedom of Information Act requests to no avail.  The purpose of the demand for official responses is to identify the legal basis upon which the searches are being conducted to assess whether or not the searches comply with the Fourth Amendment’s warrant requirement or whether the searches qualify for one of the exceptions.  The searches, as they are reportedly being conducted, amount to harassment by government officials who wrongly believe that constitutional protections do not apply to GA pilots. 

To date, none of the airmen have been arrested in connection with the warrantless searches.  As a result, without legal action in the courts by the government agencies no one has been provided with the right set of circumstances to challenge or question the DHS’s expansion of searches before a sitting Judge.  Regardless of whether or not the government takes subsequent action, if the right set of circumstances come to pass, there may exist an opportunity to challenge the actions.

If you, as an airman encounter a situation where a law enforcement official endeavors to search the aircraft without a warrant, then there are some suggested steps for you to follow to protect your rights.  First, ask the law enforcement official(s) to explain the purpose of their search.  Next, request to see the law enforcement’s official identification and make note of their name, badge number, and agency.  Third, in response to a request for documentation, provide the information specified in the Federal Aviation Regulations (FARs) to officials from the following:   the FAA, the NTSB, Federal, State, or local law enforcement agencies.  For example, a private, commercial, or ATP pilot must present their pilot certificate, medical certificate, and a photo id[1].  Additionally, the pilot must present a valid aircraft registration upon request.  The fourth recommendation is for you to ask the official to identify the authority for the search.  Ask if you are under arrest.  If you are not under arrest, then ask if you are being detained and if you are free to go.  Next, if the law enforcement official states that they are going to search the aircraft and its contents over your objection, then you should plainly state that you do not consent to the search, but that you will not interfere.  It would also be prudent to alert the law enforcement official that disassembly of any portion of the aircraft may render the aircraft unairworthy[2].  

If feasible and allowed to do so, then take steps to document the search such as with a camera of cell phone.  Make a detailed written report as soon as practical to preserve the sequence of events as close as possible to how they transpired.  Each situation is unique and it is not the intent of Higa & Gipson through this blog entry to provide legal counsel on a specific factual scenario.  If you find yourself presented with this frightening circumstance in California, then contact Aviation Attorney Ronnie Gipson to discuss the situation at (415) 692-6523 or by email at gipson@higagipsonllp.com.      



[1] Code of Federal Aviation Regulations § 61.51(i) (1) (WEST 2013).   
[2] Portions of the recommended steps were adopted from AOPA’s brochure titled, “What To Do If Stopped by Law Enforcement” dated June 19, 2013, and appearing on the Internet at http://www.aopa.org/-/media/Files/AOPA/Home/News/All%20News/2013/June/CBPGuildelinesKneeboard.pdf