New “Ag-Gag” Law in North Carolina Provides a New Tool to Fight Employee Theft
A new North Carolina law
provides an additional avenue for employers to seek redress from employees who
have taken company information for personal use.
N.C.G.S. § 99A-2, which became
effective January 1, 2016, provides that “Any person who intentionally gains
access to the nonpublic areas of another’s premises and engages in an act that
exceeds the person’s authority to enter those areas is liable to the owner or
operator of the premises for any damages sustained.” N.C.G.S. §
99A-2(a).
The enactment of N.C.G.S. § 99A-2
has also brought renewed attention to the seldom-used statutory provision that
precedes it. N.C.G.S. § 99A-1, which has existed since 1973,
provides a civil right of action for recovery of actual and punitive damages
when personal property is wrongfully taken. Depending on the situation, employers could use N.C.G.S.
§ 99A-1 or N.C.G.S. § 99A-2 to seek redress from employees who have taken company information for personal use.
The statute
lists several examples of acts that exceed a person’s authority, and first
among those examples is an employee who takes company information for use
beyond the scope of his or her employment:
An employee who enters the nonpublic areas of an employer's premises for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and thereafter without authorization captures or removes the employer's data, paper, records, or any other documents and uses the information to breach the person's duty of loyalty to the employer.N.C.G.S. § 99A-2(b)(1). The statute’s specific reference to data may make it easier for employers to seek redress from employees who have taken electronically stored information for personal use.
N.C.G.S. § 99A-2 is not without
controversy. It was enacted over the governor’s veto, and is often called
the “Ag-Gag” law by those who think that it will discourage whistleblowers in
agriculture and other industries. See, e.g., Eric Frazier, N.C.’s boneheaded ‘ag-gag’ law
protects corporate wrongdoing from exposure, Charlotteobserver.com (Jan. 5,
2016), http://www.charlotteobserver.com/opinion/opn-columns-blogs/o-pinion/article53141640.html. Additionally, the
constitutionality of the law remains to be seen—a similar law passed in Idaho
was held unconstitutional by a federal judge on First Amendment and Equal
Protection grounds. See Animal Legal Def. Fund v. Otter,
No. 1:14-CV-00104-BLW, 2015 WL 4623943, at *3 (D. Idaho Aug. 3, 2015).
Indeed, less than two weeks after its effective date, N.C.G.S. § 99A-2 was
challenged in federal court by activist organizations including People for the
Ethical Treatment of Animals (PETA), the Center for Food Safety, the Animal
Legal Defense Fund, Farm Sanctuary, Food & Water Watch, and the Government
Accountability Project. See PETA et al. v. Cooper et al., Case No.
1:16-CV-00025 (M.D.N.C).
We will be watching N.C.G.S. § 99A-2 closely in the coming months, especially the pending legal challenge.
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