Employer Not Responsible For Employee Data Safekeeping

You start your job and give your employer all your personal information: your home address, social security number, perhaps even confidential medical and financial data. Did you know your employer has no duty to keep your confidential information safe from hackers? In a recent 2 – 1 vote, a three-judge panel of the Pennsylvania Superior Court ruled that employers cannot be held responsible for a data breach of employee information even if the employer was not utilizing current best practices to prevent a breach.

In the case of Dittman v. University of Pittsburgh Medical Center, decided January 12, 2017, the names, addresses, birthdates, salaries, social security numbers and other valuable data of 62,000 employees were stolen from University computers. The breach resulted in as many as 788 employees falling victim to tax fraud and identity theft. Yet, the court’s majority concluded that since data breaches are widespread and cannot be prevented entirely, it should not create a rule that would force employers to spend significant sums on technology when data breaches remain an unavoidable hazard.

 

The court did not evaluate the technology UPMC had in place, its cost, or the cost of more expensive measures that might have prevented the breach. In a stinging dissent, Judge Musmanno chided the majority for failing to even allow the plaintiffs the opportunity to demonstrate the University was aware of the threat of cyberattacks and did not act reasonably within budgetary constraints to safeguard employee information.  The Dittman decision has far-reaching implications.  To the delight of hackers, it may encourage some employers to spend less on data security, or at least on the security of data that doesn’t affect the employer’s bottom line if it is compromised. Look for this one to go up to the Pennsylvania Supreme Court. In the meantime, employees might want to spend a little themselves on LifeLock or similar services to protect their confidential information.

Is Driving More Dangerous On New Year’s Eve?

Driving is more dangerous on any day on the calendar that increases the number of vehicles on America’s roadways as well as the number of drivers who still get behind the wheel while under the influence of intoxicating substances. Nevertheless, it may come as a surprise that New Year’s Day is statistically not the most hazardous driving day of the year. That dubious distinction belongs to July 4th.

In a study conducted by the Insurance Institute for Highway Safety analyzing traffic fatalities from 1986 through 2002, the researchers found that New Year’s Eve was the fourth most hazardous driving day of the year with an average of 142 deaths. The top three were July 4th, (161), July 3rd (149), and December 23rd (145). The study analyzed only fatalities and not the entire number of reported accidents.

Even the fourth most hazardous day of the year for traffic fatalities deserves serious reflection and appropriate caution if venturing out on New Year’s Eve. The following are some common sense precautions to assure you return home safely:

  • Allow yourself plenty of time traveling to and from your destination.
  • Make sure your vehicle’s headlights and taillights are functioning properly so you can see and be seen.
  • Wear your seat belt.
  • Avoid distractions in your vehicle from cellphones and other devices.
  • IF YOU CONSUME ALCOHOL OR OTHER CONTROLLED SUBSTANCES, FOR HEAVEN’S SAKE, DON’T GET BEHIND THE WHEEL. HEAVEN DOESN’T NEED YOU YET.

Although traffic-related deaths may increase around certain holidays, the number of fatalities across the entire 17-year period covered by the study still averaged 117 per day. As Allan Williams of the IIHS cautioned, “While more deaths do occur on some of the holidays, the toll of fatalities is relentless every day, all year long.”

If you or someone you know has been injured in an accident, contact Scott Fegley at the Fegley Law Firm, (215) 493-8287 or by email at scott@fegleylaw.com. We Give You Peace of Mind.

The Importance Of A Written Contract

“So let it be written.  So let it be done.”  This memorable quote is perhaps best known from Yul Brenner’s decrees as Pharaoh of Egypt in the classic film “The Ten Commandments.”  However, its simple principle is applicable to everyday agreements between people doing business together.  Write it down.

While an oral contract is enforceable, the problem with oral contracts is proving them.  Let me give you two recent examples.  A client hired a contractor to renovate rented commercial space prior to opening a new business.  The client understood the contractor to quote one price, and even made installment payments during the work, but he had nothing in writing.  When the work was finished, the contractor presented a bill almost $20,000.00 more than what the client had agreed to orally.  The contractor claims some of the work went beyond what they originally discussed, but no change orders were executed.

In another situation, a wedding planner hired a photographer to assist part time.  Again, the parties did not put their agreement in writing, nor did they consider who owned the rights to the finished photography proofs when the relationship ended.  When the photographer left, he wanted the wedding planner to pay him more money for the rights to continue to use the photographs he had taken during their arrangement.  Had the wedding planner simply inserted a sentence or two in a written agreement identifying the photographs as “works for hire” in which he had exclusive ownership, he could have avoided this predicament.

A written contract does not have to be complex.  And every contract should have three basic components:  (1) a brief DESCRIPTION of the goods being sold or the services performed; (2) the PRICE for the goods or services and how and when it will be paid; and the TERM of the contract or the length of time the parties intend to do business together in accordance with their agreement if it is not a single transaction.

Just as some attorneys may be handy with home repairs (I am not one of them), some contractors and business owners may be able to prepare simple contracts that meet their needs.  Anything in writing is an improvement upon an oral contract.  However, the more complex the contemplated transaction, the more professional draftsmanship can spare the parties to the agreement future conflict and legal expense.  Another well-known quote (at least for anyone over forty) comes from an old Fram Oil Filter commercial:  “Pay me now, or pay me later.”

Non-Compete Clauses: Can They Really Stop Me From Working?

Employees and independent contractors who sign contracts without fully understanding the content may jeopardize their livelihood.  Non-competition clauses in contracts are generally enforceable.  Accordingly, you should read and understand the non-competition clause’s provisions in order to make an intelligent decision about whether the benefit of the contract is worth the risk.  If you’re not confident you understand what the contract says, then a consultation in our Yardley, PA or our New Jersey office will be well worth avoiding an unpleasant surprise later on.

Non-compete clauses in employment agreements must be reasonable in scope and duration to be enforceable.  Generally, courts have held a period of up to two years to be a reasonable duration.  Courts will closely scrutinize any contract seeking to prevent competition in excess of two years.  Nevertheless, for the employee, being unable to work for two years can be punitive enough.

The more difficult analysis is the reasonableness of the scope of a non-compete clause.  When conducting such an analysis, the courts will consider geography as well as the specific duties of the job itself.  For example, a company whose clients are located only in Pennsylvania, New Jersey and Delaware cannot prohibit a former employee from working for another company anywhere on the East Coast.  And a  boutique women’s fashion shop who hired an employee to sell women’s clothing may not be able to prevent the employee from working for a company that sells men’s clothing.  Typically, the conflict arises when the employee attempts to work for someone else.  The courts will look at the old job and the new to determine whether the employee is “in competition” as defined by the language of the non-competition clause.

Like any contract, the language of a non-competition clause can be negotiable.  If you have concerns about whether the  language of a clause in a contract you are asked to sign may impair your  marketability to a  future employer, the time to address that concern is before  you sign the contract!   If you have any questions regarding your employment, contact The  Fegley Law Firm at (215)493-8287 or email Scott Fegley at  scott@fegleylaw.com.   We give you peace of mind!

Allstate awards $22 million to accident victim

Chalk this up as a win for David versus an insurance company Goliath.  Insurance giant Allstate recently was socked with a $22 million verdict for bad faith in a case that was one for the record books in the state of Pennsylvania.  A jury awarded $19.1 million to Patrick Hennessy of Feasterville, PA.  Another S2.9 million was added for delay damages and interest.  Hennessy was the victim of an accident that ultimately resulted in the amputation of his right leg.  Allstate refused to pay its $250,000.00 policy limits to Hennessey because he was outside the insured vehicle when the accident happened.

Jim Boyle of The Pennsylvania Record has more on the accident:

At about 2 a.m. on July 26, 2009, Hennessy was a passenger in a vehicle driven by a friend, Ryan Caruso, when Caruso rear-ended another vehicle. Hennessy and Caruso got out of their vehicle to push their car to the side of the road.  Hennessey was then struck by a vehicle driven by Shawn Robertson, Jr., crushing his limb.

When Allstate refused to pay its policy limits, Caruso assigned his rights against Allstate to Hennessy, allowing the plaintiff to sue the insurer.  The $22 million judgment encompasses the $19.1 million verdict and subsequent delay damages plus interest.

A young man’s life was changed forever and Allstate refused to compensate him $250,000 because of a legalistic reading of its policy language.  Allstate was wrong and now deservedly should pay.

Casey, Hennessy’s attorney, summed it up to the Intelligencer this way:

It was a protracted but ultimately successful battle between a young man with a catastrophic injury and the largest insurance company in America.  It is a testament to what one individual can accomplish through our civil laws when an injustice occurs.

If you have a legal matter related to an injury or your employment, please call our Yardley office at 215-493-8287 or send us an email HERE. We will be glad to help.