Jennings, Strouss & Salmon Expands Washington, D.C. Office

PHOENIX, Ariz. (August 30, 2011) - Jennings, Strouss & Salmon, PLC, a leading Phoenix-based law firm, is pleased to announce that Alan J. Rukin has joined the firm as an associate in the firm's Washington, D.C. office.

"We are excited to have Alan join our energy and corporate practice groups," stated Debra D. Roby, chair of the firm's energy department. "His background and enthusiasm will be a great asset to us as we continue to grow our practice. It is a pleasure to have him on our team."

As a member of the firm's Energy and Corporate, Securities and Finance departments, Rukin will utilize his engineering and legal background to enhance the services offered to clients.

"The Jennings Strouss tradition of excellence led me to join this team, along with the outstanding reputation of the attorneys who are part of the firm's national energy practice. I look forward to working alongside these professionals as we address critical issues in the traditional and alternative energy industries," stated Rukin.

Prior to attending law school, Rukin worked in the engineering operations division of a coal-fired generating station owned and operated by a rural electric cooperative. While earning his law degrees, he worked for a self regulatory organization in the securities industry and several positions within the federal government. Rukin also taught constitutional law and appellate arguments to high school students in the District of Columbia Public School System.

Rukin earned a J.D. from American University Washington College of Law, an LL.M. in Securities and Financial Regulation from Georgetown University Law Center, and a B.S. and M.E. in Civil Engineering from the University of Florida. He is admitted to practice in the District of Columbia and Florida, and is a member of the Energy Bar Association and the American Bar Association's Business Law and Environment, Energy and Resources Sections. Rukin currently resides in Arlington, VA.

Jennings Strouss Foundation Receives ICARECORPS Partnership Award

PHOENIX, Ariz. (August 23, 2011) - Jennings, Strouss & Salmon, PLC, a leading Phoenix-based law firm, is pleased to announce that the Jennings Strouss Foundation (JS Foundation) received the ICARECORPS Partnership Award from Gateway School for the 2010-2011 school year. The award was presented at the Creighton District Recognition Awards Celebration at Creighton School in Phoenix on Wednesday, August 17^th.

"We are very grateful and appreciative for the support of the Jennings Strouss Foundation. There are so many families who benefit from the generosity of firm and its employees," stated Nancy Uxa, principal of Gateway Elementary School. "Every donation they make goes a long way in helping our students have a brighter future."

Gateway School is a primary school in the Creighton School District, serving over 850 students in grades kindergarten through 8. Gateway has a 98 percent minority enrollment, with 90 percent of the students on the free or reduced fee lunch program.

"On behalf of the JS Foundation and the employees of Jennings Strouss, I am delighted to accept this award. We are pleased to partner with Gateway Elementary School and the Creighton School District on projects that benefit the students of Gateway. Our projects have brought much satisfaction to those in association with Jennings Strouss and we hope that our efforts have aided in the school's educational goals," said Janet B. Hutchison, JS Foundation President and an attorney in the Phoenix office of Jennings, Strouss & Salmon.

The JS Foundation was established to accommodate the desire many Jennings, Strouss & Salmon employees had to give back to the community. While many contribute their own personal resources to worthy causes, they felt that the need to make a more significant impact by as group to address issues in underserved communities. This goal was achieved through the formation of the foundation, which has maximized employees' efforts and allowed the firm to express its commitment to community through social responsibility and philanthropic causes.

The current focus of the JS Foundation is to meet the educational needs of disadvantaged individuals, adults and/or children, in the communities in which the firm operates. This goal is reached through the collective efforts - whether financial, in-kind donation, or volunteer work - of Jennings, Strouss & Salmon employees, families and friends.

The JS Foundation's mission is to not only serve the immediate needs of its beneficiaries, but to also pave the way towards a better future for all.

Salt River Project Icon Richard H. Silverman Joins Jennings, Strouss & Salmon

PHOENIX, Ariz. (August 22, 2011) - Jennings, Strouss & Salmon, PLC, a leading Phoenix-based law firm, is pleased to announce that Richard H. Silverman, former General Manager of Salt River Project (SRP), has joined the firm as Of Counsel.

"Dick's reputation and standing in Arizona and the national electric industry will enhance not only our energy practice, but our tradition of community involvement," said J. Scott Rhodes, Managing Attorney of Jennings, Strouss & Salmon.

Silverman began his career with SRP in 1966 as an attorney and, over the years, held various legal and managerial roles, including Associate General Manager of Law and Administrative Services. In 1994, Silverman was named General Manager of SRP. His many accomplishments include the 2011 President's Award, J.D. Power & Associates; 2011 Lifetime Achievement Award, the Agri-Business Council of Arizona; 2011 Lifetime Achievement Award, Most Admired Executives, Phoenix Business Journal; and the Whitney M. Young, Jr. Individual Award, Greater Phoenix Urban League.

"Having worked in the utility business my entire career, it seemed appropriate to associate with a firm enjoying a strong energy and utility practice, where knowledge and experience would be mutually beneficial," said Silverman, former general manager of Salt River Project. "For nearly seven decades, Jennings Strouss has demonstrated excellence and leadership in the legal field, and I am pleased to begin another career with such a respected firm."

Silverman is a well-recognized and respected professional in the energy industry, in Arizona and on a national level. He is past Chair of the board of directors for the Electric Power Research Institute; past Chair and former steering committee member of the Large Public Power Council; and former executive committee member of the board of directors for the American Public Power Association.

As Of Counsel at Jennings, Strouss & Salmon, Silverman will continue his active involvement with Arizona civic organizations and will also work closely with the firm's Washington, D.C.-based energy practice, which focuses on representing the business and regulatory needs of electric, natural gas, telecommunications and water utilities.

Silverman is active in a number of community organizations, including Greater Phoenix Leadership, the University of Arizona Foundation and the Translational Genomics Research Institute. He serves as Chair of the Governor's Arizona Medical Education Oversight Task Force and is a member of the Governor's Arizona Centennial Commission and Centennial Foundation.

He earned both his J.D. and B.S. in Business from the University of Arizona. Silverman currently resides in Phoenix with his wife Susan.

National Labor Relations Board Limits Undocumented Workers' Remedies

8.18.11

On August 9, 2011, the National Labor Relations Board (NLRB) issued a decision holding that undocumented workers are not entitled to back pay or reinstatement, even if their claims are meritorious.

In Mezonos Maven Bakery, Inc., 357 NLRB No. 47 (2011), a group of undocumented workers were terminated following complaints about the treatment they were receiving from a supervisor.The employees then filed unfair labor practice charges.The employer opposed reinstating and reimbursing the employees because their undocumented status precluded back pay, even though it was the employer, and not the employees, who violated the Immigration Reform and Control Act (IRCA).

The Board analyzed the Supreme Court's decision in Hoffman Plastic Compounds and concluded that regardless of which party violated the IRCA, the Board could not award back pay."The holding is categorically worded: back pay may not be awarded to undocumented aliens.It suggests no distinction based on the identity of the IRCA violator."Thus, whether the employer knowingly hired undocumented workers, or was given false documentation by the employee, "undocumented immigrants working in the United States are party to an employment relationship the Court deems criminal."

The Arizona legislature has expressly eliminated discretionary benefit payouts to undocumented workers in many Arizona statutes such as those involving unemployment compensation, the Arizona Health Care Cost Containment System (AHCCCS), and welfare. As a result, there has not been a need for Arizona courts to weigh in as of late. However, although the Arizona Court of Appeals upheld a denial of workers compensation benefits to an undocumented furniture worker in 2006 because the denial was "not unfounded," one of the judges opined that because the legislature did not expressly provide that undocumented workers were "employees" under the Workers Compensation Act, they should not be entitled to benefits under that Act. Gamez v. Indus. Comm'n of Arizona, 213 Ariz. 314, 325, 141 P.3d 794, 805 (App. 2006)(Barker, J., concurring).

Each case a business or individual may face is unique and may require legal advice. If you would like additional information regarding the content of this article, please contact a member of our Labor and Employment Department.

Legal Watch Series: Topic 9 - Employees' Privacy Rights When Using Company Computers

Michael R. Palumbo

8.17.11

Introduction: This is the ninth article in a continuing series of short informational pieces relating to one of the hottest topics in litigation, e-discovery. The purpose of these articles is to provide your business with some guidelines on how to most efficiently prepare for e-discovery. If you are new to our distribution, or if you would like to view previous articles in this series, please visit our website.

Employers who provide computers to employees for company business should not assume that they have unlimited rights to inspect or conduct wholesale discovery of an employee's personal data on company computers, even if they have a policy that states employees should not use the company computer for personal use.

City of Ontario, CA v. Quon, 130 S. Ct. 2619 (2010) involved a City of Ontario SWAT team member who used his employer-issued PDA for personal communications. The City's policy did not prohibit the personal use of the communications device, but did indicate that such use could be monitored; however, there was an unwritten practice that such use would not be monitored as long as the employee paid for excess charges. When Quon's supervisor asked to see the text messages on Quon's PDA, he refused and sued under various federal statutory and United States constitutional privacy theories. The Ninth Circuit Court of Appeals held that the employee had a "reasonable expectation of privacy" as defined in the Fourth Amendment of the Constitution, and that the supervisor's request to search the PDA was unreasonable.

The Supreme Court disagreed. Its opinion was narrowly based on Quon's reasonable expectation of privacy. The Supreme Court avoided the Fourth Amendment constitutional issue due to its concern that the implications of the emerging technology were still developing.

In Sprenger v. Rector and Board of Visitors of Va. Tech., -- F. Supp. 2d ---, 2008 WL 2465236 (WD Va. 2008), Sprenger, a state employee, sued her employer, Virginia Polytechnic Institute and State University (Virginia Tech), claiming violations of the Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA). During discovery, the University subpoenaed the "electronically stored information" on the computer used by Sprenger's husband. The defense was specifically interested in obtaining e-mails concerning the lawsuit and those sent between Sprenger and her husband. Sprenger was successful in quashing the subpoena, asserting that the information on her husband's computer was protected by marital privilege, even though the University had a computer policy that stated no user should have any expectation of privacy in any e-mail sent or received, and that all e-mails were subject to monitoring. The Court found that Virginia Tech failed to present evidence that the policy was regularly enforced and that the Sprengers had received notice of the policy.

This was not the case in United States v. Etkin, 2008 WL 482281 (S.D.N.Y. 2008), where the United States District Court for the Southern District of New York held that the defendant did not have a reasonable expectation of privacy in e-mails sent from his office computer because each time he logged on, a "flash screen warning" appeared stating that the employer may monitor or inspect the computers at any time; therefore, an expectation of privacy was "entirely unreasonable."

Other notable cases include, Curto v. Med. World Communications, Inc., 2006 WL 1318387 (E.D.N.Y. 2006)(plaintiff could not claim an expectation of privacy, although e-mails with her attorney from a company computer were privileged); Leventhal v. Knapek, 266 F.3d 64(2^nd Cir 2001) (investigatory searches on a state-owned computer did not violate an employee's fourth amendment rights, since the employer had reasonable grounds to believe that the searches would uncover evidence of the misconduct); United States v. Slanina, 283 F.3d 670 (5^th Cir. 2002) (absence of a city policy placing the defendant on notice that his company computer usage was monitored, and the lack of any indication that other employees had routine access to his computer, provided the defendant with a reasonable expectation of privacy); Long v. Marubeni Am. Corp., 2006 WL 2998671 (S.D.N.Y. 2006) (plaintiff waived the attorney-client privilege even though he, in communicating with his counsel, used a personal, password-protected email account).

In Stengart v. Loving Care Agency, Inc., 990 A. 2d 650 (NJ 2010), Marina Stengart filed suit against her former employer, after her employer performed a forensic image of the hard drive from the laptop that she had returned, discovering privileged, password-protected correspondence between Stengart and her attorney made through her web-based e-mail account.

The employer argued that the e-mail messages were not protected because its written policy stated that the company may access "all matters on the company's media systems and services at any time." The trial court found in favor of the employer; but was reversed on appeal because of ambiguities in the employer's electronic communications policy that supported a reasonable expectation of privacy. In addition, the court concluded that the defense had violated professional conduct rules by failing to alert plaintiff's counsel that it had discovered the messages prior to reading them. The decision was affirmed by the New Jersey Supreme Court, but it should also be noted that, unlike most states, New Jersey's constitution recognizes a right to "informational privacy."

A similar issue was raised in a California case, Holmes v. Petrovich Development Co., 119 Cal. Rptr. 878 (App. 2011), which involved employment discrimination as defined by California law. Contrary to the New Jersey decision, the California Court of Appeals held that e-mails between an employee and her personal attorney, sent from a company-owned computer using a private, password-protected account, were not "confidential," thus, no reasonable expectation of privacy existed and the communications were not protected by the attorney-client privilege. The court's decision was influenced by the fact that the messages were in violation of the company policy prohibiting personal use of company computers, stating that the computers are for business purposes only and subject to monitoring. The employer also had procedures in place to support the fact that employees are made aware of such policies. The court commented that using the computer under the circumstances was "akin to consulting her attorney in one of [the employer's] conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by [the employer] would be privileged." California does not have a constitutional right to "informational privacy."

In conclusion, unless a state has a unique constitutional provision, employers must implement and reasonably enforce comprehensive policies concerning company computer usage, and ensure procedures are in place to document that employees are aware of such policies in order to access and/or use an employee's personal data.

If your company needs assistance in formulating a company computer usage policy, or would like to further discuss issues related to e-discovery in the work place, please contact Michael Palumbo, 602-262-5931 or Valerie Walker, 602-262-5844.

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About the Author
For more information or questions regarding E-Discovery and the Rules for Electronically Stored Information Management, contact Michael R. Palumbo.

Michael R. Palumbo focuses his practice on commercial and real estate litigation. Particular areas of experience include banking (UCC Articles 3 & 4) litigation; title insurance, escrow agent and Deed of Trust litigation; and quiet title, adverse possession, homeowners' associations and real estate agent disputes. He has participated in more than 50 trials in the Superior Courts of Arizona and District Court of Arizona, in most of which he was lead counsel. Mr. Palumbo can be reached at 602.262.5931 or mpalumbo@jsslaw.com.

JS Foundation Holds Successful Back-to-School SupplyDrive

Summer 2011

The Jennings Strouss Foundation held a successful back-to-school drive for Gateway Elementary in the Creighton School District. To help alleviate financial burdens due to budget cuts, the JS Foundation committed to supporting the school, which educates a number of children from low-income families, by providing 30 first grade students with the necessary tools to begin the new school year.

Items donated included backpacks, pencils, erasers, pencil sharpeners, crayons, pencil boxes, glue sticks, rulers, scissors and addition/subtraction math facts flash cards. Through the generous assistance of Jennings Strouss personnel, the JS Foundation was able to donate 32 fully stocked backpacks and provide additional supplies to first grade teacher, Teresa Colonna Nelson. In addition, donated supplies, including notebooks and binders, were provided to the school.

The JS Foundation Board Members and volunteer, Mike Hutchison, delivered the supplies to Gateway Elementary on Friday, August 5, 2011, just in time for the first day of school on August 8th. The Gateway Elementary School representatives present to accept the donations included Janet Chapin-Walden (Title I Director), Dr. Nancy Uxa (Principal), and Teresa Colonna Nelson (Teacher).