1. An Employer’s Guide to Avoiding Criminal Liability: Examining the Confluence of Criminal And Employment Law State Bar of Texas 16TH ANNUAL ADVANCED EMPLOYMENT LAW COURSE January 31-February 1, 2008 Houston Mark A. Shank and David A. Alexander Kirkpatrick & Lockhart Preston Gates Ellis LLP 1717 Main Street Suite 2800 Dallas, Texas 75201

2. 4 Types of Statutes 1.Whistleblowers 2.Information Crimes 3.Employment Decisions 4.Workplace Corruption / Harassment / Moral Turpitude (p. 1)

3. Legal Standards for Corporate Liability 1.Scope and intent to benefit 2.ER need not be aware or condone 3.Can be contrary to instructions 4.Only general line of work 5.“Intent to Benefit” broadly construed (p. 1)

4. Legal Standards (Cont.) 6.Org. “collective intent” at issue 7.Thompson memo – self reporting (p. 2)

5. Whistleblowers 1. Sarbanes-Oxley Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both. (p. 2)

6. Sarbanes (Cont.)  Not limited to public companies  Any federal officer (wide-ranging)  Law enforcement officer - Includes anyone authorized to act - Examples: OSHA Investigations / IRS Auditors 4.Retaliation = Any harmful action - Examples = Firing / Demotion / Discipline 5.No private civil action

7. Misuse / Altercation / Destruction of Information 1.Intentional misstatement of ERISA records 2.Impede official proceeding - Lying / misleading federal officers - Alter / destroy/ conceal records (p. 4)

8. OSHA 1. Advance notice of worksite investigation

9. Employee Communications 1.Intercepting employee communications provided through third party 2.Safe Harbor = consent (p. 5)

10. Disclosure 1.Publish or disclose tax information 2.HIPPA protected information (p. 5)

11. Document Retention 1.SOX: Document retention may aid with obstruction of justice allegations 2.Does not cover destruction in ordinary course of business 3.Does not protect people who destroy with specific intent to impede current or future investigations (p. 5)

12. FLSA 1.Willfully pay less than minimum wage 2.Willfully require working more than maximum number of hours 3.Willfully transport or sell goods made in violation 4.Willfully violate the Equal Pay Act (p. 6)

13. Benefits 1.Fraud or intimidation to interfere with employee receipt of ERISA benefits 2.Willfully refusing to make unemployment contributions (p. 6-7)

14. Immigration 1.Hire 10+ persons in 12 months known to be illegal aliens 2.Knowingly harbor illegal aliens (p. 7)

15. Termination 1.Retaliatory term of whistleblowers 2.FLSA prohibits retaliatory termination of those who complain about FLSA violations 3.CCPA: Discharge for garnishment (p. 7)

16. Corruption 1.ERISA: Bribery in ERISA plan administration 2.LMRA: Bribery, fraud or duress (p. 7)

17. Stalking / Harassment 1.Repeated phone / electronic contact 2.Stalking: threatened bodily injury or property damage 3.Possible liability to employee if intended to benefit (p. 7)

18. Child Pornography 1.Knowingly possesses child pornography 2.Possible criminal liability on employees who are “willfully ignorant to possession of pornographic materials” (p. 8)