Terra Extraneus

In Colorado, at least, it might matter. In Dish Network v Altomari (Colo. Ct. App. June 25, 2009), the question was whether the employee that supervised some people, probably a sales staff, was in “management.” If the employee was in management, then under the Colorado non-compete statute, a non-compete against the employee was enforceable. The Court of Appeals reversed the trial court and held the employee was in management.

The term “management” is not defined in the Colorado statute. However, it is pretty clear the court is confused about what constitutes “management.” The only employees in “management” are those who can bind the company or otherwise decide company policy, typically corporate officers and directors. That would be a logical purpose of the statute. Applying the statute to middle or lower tier supervisors turns the statute from a fair allocation of business risk to a draconian labor control tool.

Of course, will Financial Advisors in Colorado with titles like “Vice President” or “Director” once again face non-compete risks when they trade jobs? Protocol firms may not be tempted but many will be in the is shaky economy. Financial Advisors in Colorado should try to wheedle an email or something that indicates they are not in management, or obtain a page from a firm policy manual that says something similar.

(Hat Tip: Professor Ross Runkel’s employment law summaries)

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The case reported by Professor Ross Runkel issued by a New Jersey appellate court, Stengart v Loving Care Agency, held that privileged communication by the former employee with her attorney through her employer’s computer retained its privilege.

The case was interesting because the employee made the same mistake many people make. The employee was using a web based password protected email account believing that no trace of the email on the outside website was being left on the computer owned by the employer. That was untrue. Because the employee was viewing web email through the browser on the employer’s computer, the computer captured a picture of every image the employee saw, thus preserving it for the employer’s computer analyst to retrieve.

The moral of the story: do not use an employer’s computer for anything you want to remain private. Go outside of the employer’s hardware.

Most employers are not set up to retrieve or view web images viewed by the employee, but that does not mean a computer expert cannot retrieve the images from the computer when desired. Just because compliance systems are not set up to see every image the employee can see, like web based email, does not mean the email, once viewed on the employer’s computer, cannot be viewed by a computer analyst.

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