Courtroom Weekly: Employment laws and energy drinks

### July 4, 2013[edit]

by: the State Court Staff

Happy 4th of July!

### Courts rule on employment issues, government accountability and GPS tracking[edit]

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### Courtroom Weekly

The latest and greatest in court cases around the nation
In this issue...

Featured case
News from Tennessee
News from New York
News from New Jersey
News from Illinois
News from Georgia

### Featured case

### In rare move, Iowa Supreme Court reconsiders gender discrimination suit[edit]

|  Court: Iowa Supreme Court

By Ryan Cherry

Chief Justice Mark Cady, of the Iowa Supreme Court, signed an order on June 24, 2013, to reconsider a decision in which the Iowa Supreme Court ruled in favor of dentist, Dr. James Knight, on sexual discrimination charges brought by his recently terminated female dental assistant, Melissa Nelson.[1] The December 2012 decision, filed by the court, asked whether a male employer terminating a female employee, under the circumstances presented in this case, amounted to sexual discrimination in violation of the Iowa Civil Rights Act.[2] The reconsideration of this decision is quite rare since, according to the Des Moines Register, the court has only reconsidered five other decisions in the past decade.[3]

The circumstances presented in this case, which raise a novel question for the Iowa Supreme Court, arose because Dr. Knight was trying to avoid having an affair with Ms. Nelson. The unanimous, all-male decision, written by Justice Edward Mansfield, stated that Dr. Knight was terminating Ms. Nelson because "he feared he would try to have an affair with her down the road if he did not fire her."[2] After discovering texts between Dr. Knight and Ms. Nelson, Dr. Knight's wife insisted that he terminate Ms. Nelson. Dr. Knight's wife called Ms. Nelson "a big threat to our marriage," according to the court's opinion.[2] However, the court found that "the texts [between Dr. Knight and Ms. Nelson] involved updates on the kids’ activities and other relatively innocuous matters" and Ms. Nelson's claims did not include any charges for sexual harassment.[2]

In affirming the ruling by Judge Thomas J. Bice of the District 2B Court for Webster County, the Iowa Supreme Court determined that when a male employer fires a female employee at the behest of his wife, it does not amount to unlawful discrimination.[2] The court's decision received public attention at the national level, and most of the reaction was negative.[1] Iowa attorney, Ryan Koopmans, stated, "The only thing that's changed here is the public's reaction to the decision, which was mostly negative."[1] A line in the decision which stated that the question presented by the case was "whether an employee...may be lawfully terminated simply because the boss views the employee as an irresistible attraction," spawned numerous headlines which boasted that the Iowa Supreme Court was condoning employers who fire employees because they are too attractive.[1][2][3][4]

This represents an oversimplification of the issues and facts presented in the case, according to Dr. Knight's attorney, Stuart Cochrane. Cochrane is quoted as saying that Dr. Knight and his wife "really agonized about" terminating Ms. Nelson, but that Dr. Knight had repeatedly asked Ms. Nelson to dress differently because her clothes were tight and distracting. The same article stated that Ms. Nelson denied wearing anything that was "out of place" and that her work attire consisted of scrubs.[4]

According to the Huffington Post Online article, the order issued by Chief Justice Cady stated that the court will be re-evaluating "previously submitted evidence and legal briefs" and that "the case will be reopened for discussion by the court."[1]

### News from Tennessee

### 5-hour Energy fights to protect its secret recipe[edit]

|  Court: Twentieth District Chancery Court, Tennessee

By Jong Son

The makers of 5-hour Energy have filed suit in Davidson County Chancery Court to protect the secret recipe for their product from state regulators. Living Essentials, a Michigan-based company, has rejected requests from the Tennessee Attorney General and the Tennessee Department of Commerce and Insurance for a detailed explanation of the exact ingredients used in their popular energy drink. The company filed the suit in Davidson County Chancery Court in June, arguing that a statute that protects trade secrets should keep them from having to disclose their recipe.[5]

Living Essentials argued in the suit that disclosing a detailed ingredients list would destroy their competitive advantage in the energy drink market, and provide their competitors with valuable information that would allow them to emulate their profitable concoction. Nearly 9 million units of 5-hour Energy are sold each week, generating nearly a billion dollars in revenue per year.[6]

This isn’t the first time that Tennessee courts have been asked to rule on the issue of 5-hour Energy. A 2009 civil suit filed in the United States District Court for the Western District of Tennessee alleged that the energy drink was the “sole causative factor” in the death of twenty-seven-year-old Antonio Hassell, who used 5-hour Energy regularly while working a 4:00 p.m. to 1:00 a.m. shift at a warehouse. Living Essentials issued a response to the suit, claiming that 5-hour Energy “is a safe dietary supplement” and that its product “fully complies” with federal regulations.[7][8]

Thirty-three other states have requested similar information from Living Essentials in order to investigate accusations from consumer advocate groups that the claims made in 5-hour Energy advertisements are misleading or false. The U.S. Food and Drug Administration and the Department of Justice have also sought to investigate claims that the use of energy drinks has been involved in 13 fatalities nationwide.[6]

### News from New York

### Snooping on employees using GPS is legal[edit]

|  Court: New York Court of Appeals

By Susan Lawrence

On June 27, 2013, New York’s highest court, the Court of Appeals, ruled an employer can use GPS to track an employee during work hours and noted the tracking device could be attached to an employee’s personal car. A majority on the court agreed a warrant wasn’t required to track an employee using a GPS device and compared it to a workplace search. However, the court determined the way the government used the GPS device was not reasonable since the device was used to track a former Labor Department employee 24 hours a day.[9]

Michael Cunningham was fired from his $115,000-a-year-job at the Labor Department after an investigation by his employer determined he had been lying about the hours he worked. State investigators placed a GPS device in the wheel well of Cunningham’s personal vehicle to collect information about his movements. The GPS device was left in place for a month and tracked Cunningham throughout the day and night. Investigators allege they resorted to secretly attaching a GPS device to his personal vehicle after Cunningham began taking steps to avoid being followed.[10]

All the judges on the Court of Appeals considered attaching a GPS device to Cunningham’s car to be a "search" as defined by the Fourth Amendment. A majority on the court found the workplace exception that permits an employer to search an employee’s work area and employer-issued property without a warrant also applied in this case.

| “  | . . .We reject the suggestion, at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.[11][12] | ”

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However, in a minority opinion, Judge Sheila Abdus-Salaam indicated the majority on the court went too far in extending the workplace search exception to an employee’s private vehicle. She said the ruling could interfere with privacy rights granted to individuals under state and federal law and speculated the ruling could open the door to other methods for tracking employees who do not drive.

“  | . . .There is now little to prevent a government employer from placing a GPS device on that person’s bag, briefcase, shoe, cell phone, watch or purse. . . to determine whether. . .the employee is located where he or she purports to

be. . .[13][12]

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Cunningham was represented by Corey Stoughton, an attorney for the New York Civil Liberties Union. Stoughton noted,

“  | With this ruling, the state’s 200,000 employees can feel secure in the fact that their bosses cannot secretly track them and their families for 24 hours a day. . .the government cannot intrude into the private lives of employees simply to investigate workplace issues.[13][12] | ”

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Cunningham was originally charged with 11 acts of misconduct. Four of the charges relating to information obtained using GPS were dropped. The court ordered the case to be returned to a state labor commissioner who will determine if Cunningham should get his job back.[10]

### News from New Jersey

### New Jersey Supreme Court holds abuse and neglect are not necessary findings to take away a parent's right to custody[edit]

|  Court: New Jersey Supreme Court

By Samantha Ward

On June 14, 2013, the New Jersey Supreme Court found that the State can intervene and remove a child from a parent's custody, even if no abuse or neglect has been proven.

In the case before the court, a mother, who was named in the complaint as "I.S.," went to the New Jersey Division of Child Protection and Permanency to seek help with her children in 2007. She complained that the twin nine-year-old girls were suffering from "various emotional problems and learning difficulties."[14] I.S. realized that she could not afford to provide the girls with the specialized help they needed and asked the State to assist her in doing so. The State investigated reports of sexual abuse but found no evidence of any neglect or abuse on the part of the mother. The State, however, took away I.S.'s custody of the girls once she indicated she could not afford to pay for the "residential care" the girls required.[15] The New Jersey Supreme Court approved the decision made by Child Protection to take away I.S.'s custodial rights despite the lack of abuse or neglect. However, they did so by citing to the abuse or neglect law.[16]

Once the girls had received the help I.S. requested, though, the State did not return custody of both girls to their mother as expected. Instead, the father of the twins was given custody of one of the girls, who are now 15-years-old.

This ruling is important because now children with special needs may be moved to the State's care if their parents cannot provide for them. Diana Autin, Executive Director of Statewide Parent Advocacy Network of New Jersey, said,

| “  | [Parents] can turn to the Division [of Child Protection] for help, but it may come with a cost. It could end with an award of custody to the Division for at least six months, maybe even longer.[14][12] | ”

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Autin is concerned that now the State can obtain custody of any child with behavioral problems if the parent cannot financially provide the type of services the child needs and the State determines that the services are in the child’s best interest. It seems this is possible even without using the state's abuse and neglect law.[15]

Autin cautioned New Jersey parents to seek legal advice before asking the State for help; by doing just that, I.S. lost custody of one of her children, possibly forever.[15]

### News from Illinois

### Victory for Chicago reporter in freedom of information suit[edit]

|  Court: Illinois First District Appellate Court

By Alma Cook

An Illinois reporter who was repeatedly denied copies of city records may finally see the fruit of his requests, thanks to a June 28 ruling by the state Appellate Court.[17]

The conflict began in 2010, when Chicago Mayor Richard M. Daley announced plans to transfer dozens of police officers from desk jobs to street duty in order to more effectively curb crime. The changes were prompted in part, he said, by a thorough study by professional consultants that demonstrated the benefits of this plan.[18]

Wishing to know more, Mick Dumke of the Chicago Reader filed a Freedom of Information Act (FOIA) request with the local police department, asking for a copy of all records generated by the study. The request was denied on account of inconvenience—so he resubmitted it, this time asking only for a copy of the study itself. He was rejected again and told that a loophole in the FOIA rendered the study exempt from disclosure, as it pertained to a preliminary or proposed policy rather than one that had been officially implemented at the time of reference.[18]

Wrote Dumke in Reader,

| “  | I thought this was rather a curious excuse for keeping the report under wraps. Under the FOIA, records aren't exempt once they're 'publicly cited and identified by the head of the public body'—you know, by figures like Daley.[18][12] | ”

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Dumke proceeded to sue the city. Over the course of the lawsuit, Mayor Daley was replaced by Rahm Emanuel, who has vowed to facilitate the most "open, accountable and transparent government" in the history of Chicago. However, this change of office brought no immediate developments to Dumke's case. In 2011, Cook County Judge Franklin U. Valderrama ruled in favor of the city, agreeing with the police department that the study was exempt from disclosure.[18][17]

Dumke appealed—and as the case progressed, the arguments began to hinge on more intricate details, even coming down to whether Daley had truly "publicly cited and identified" the study and whether his authority qualified him as the "head of the public body" according to FOIA standards.[17][18]

The initial ruling was reversed last week by Judge Daniel James Pierce of the First District Appellate Court. The city has 21 days to consider an appeal.[17][18]

### News from Georgia

### Georgia Supreme Court sentences Johnnie Worsley to death[edit]

|  Court: Georgia Supreme Court

By Matt Latourelle

The Georgia Supreme Court has reinstated the death penalty for Johnnie Worsley, who was convicted of the 1995 rape and murder of his 17-year-old stepdaughter and wife.

The July 1 ruling comes as a reversal of a lower court's decision in 2012. A Muscogee County court removed the death sentence after deciding that Worsley's trial attorneys had been incompetent. The Supreme Court agreed that the attorneys should have objected to certain testimony, but that the appeal failed to prove that such action would have resulted in a different outcome in the case.

The Supreme Court explained,

| “  | case for death was a strong one, considering that the murders of Ms. Worsley and Ms. Bell were particularly brutal, and there was no dispute that (Worsley) was the person who committed those acts of brutality.[19][12] | ”

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## See also[edit]

* Courtroom Weekly

## Footnotes[edit]

1. ↑ 1.0 1.1 1.2 1.3 1.4 Huffington Post Online, "Iowa Supreme Court To Reconsider Case Of Melissa Nelson, Woman Fired For Being Too Attractive," July 1, 2013
2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 Iowa Judicial Branch, "Nelson v. Knight," December 21, 2012
3. ↑ 3.0 3.1 Des Moines Register, "Iowa Supreme Court to reconsider 'irresistible employee' case," June 27, 2013
4. ↑ 4.0 4.1 CNN Online, "'Irresistible' worker fired in Iowa: 'I don't think it's fair'," December 25, 2012
5. ↑ The Tennessean.com, "5-Hour Energy's ingredients are subject of court fight in TN," June 24, 2013
6. ↑ 6.0 6.1 News Channel 5.com, "State Officials Request Ingredients Of 5-Hour Energy Drink," June 24, 2013
7. ↑ WMCTV.com, "Memphis family files $150 million civil lawsuit against 5 Hour Energy," August 3, 2010
8. ↑ Hassell v. Innovation Ventures, LLC, First Amended Complaint, Filed August 5, 2010
9. ↑ All Over Albany, "New York’s highest court on GPS and who can share tips at a Starbucks," June 27, 2013
10. ↑ 10.0 10.1 New York Daily News.com, "Court rules Inspector General went too far in GPS tracking ex-employee," June 28, 2013
11. ↑ thinkprogress.org, "Government Employers Don’t Need A Warrant To GPS Track Your Car, New York High Court Rules," June 28, 2013
12. ↑ 12.0 12.1 12.2 12.3 12.4 12.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
13. ↑ 13.0 13.1 timesunion.com, "Court: State erred in tracking state worker," June 28, 2013
14. ↑ 14.0 14.1 Marilyn Stowe Blog, "US court: authorities can take children into care even if there is no evidence of mistreatment," June 17, 2013
15. ↑ 15.0 15.1 15.2 CBS Philly, "NJ Supreme Court Rules State Can Seek Custody Of Child Without Evidence Of Abuse," June 14, 2013
16. ↑ Opposing Views, "New Jersey Supreme Court: State Can Remove Children Without Evidence of Abuse," June 19, 2013
17. ↑ 17.0 17.1 17.2 17.3 Illinois First District Appellate Court, "Dumke v. City of Chicago, June 28, 2013
18. ↑ 18.0 18.1 18.2 18.3 18.4 18.5 The Chicago Reader, "Illinois Appellate Court tells city: Cough up public records," July 1, 2013
19. ↑ The Republic, "Supreme Court of Georgia reinstates death sentences in west Georgia case," July 1, 2013

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