Allowing Prosecutors to decide which violations to prosecute invites Arbitrary Enforcement
When Congress fails to clearly identify the type of conduct that may give rise to criminal punishment, prosecutors have license to pursue their own personal predilections. This is the real danger in allowing prosecutors to criminalize violations of work rules. It is particularly distressing when the employee is a public official because pursuit of criminal charges against the official may end up altering the outcome of a legitimate election.
It goes without saying that workplace rules are routinely broken. That is the real reason employers have progressive discipline policies that impose increasing punishment for repeated violations. Some employer directives are ignored even by employers. Personal dalliances during the workday- for example, running a personal errand or shopping online for personal items- are generally forbidden but employees are rarely disciplined for occasional deviation from their work. Similarly, use of an employer’s equipment for personal phone calls or send personal emails may be prohibited by computer-use policies, but employees are almost never disciplined when they make periodic use of work equipment for personal purposes. Therein lies the problem: giving prosecutors the discretion to determine which of these common occurrences to prosecute as crimes.
The risk of arbitrary prosecution prompted the Ninth Circuit to strike the government’s interpretation of the federal Computer Fraud and Abuse Act (CFAA) that based criminal liability on violations of an employer’s computer-use policy in United States v Nosal. The defendant in Nosal was charged with violating the criminal provisions in the CFAA when he downloaded information from his employer’s computer and took it with him to his new place of employment in violation of computer-use restrictions implemented by his employer. In an en banc decision, the Ninth Circuit concluded that the CFAA could not be constructed to criminalize conduct that was prohibited by the employer’s policy. The court observed that “[s]ignificant notice problems arise if we allow criminal liability to turn on the vagaries of private policies.” and that “[b]asing criminal liability on violations of private policies can transform whole categories of otherwise innocuous behavior into federal crimes . . .” Explaining that employees routinely use their employer’s computer equipment for personal purposes notwithstanding policies prohibiting such use and that “[u]biquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement,” the Nosal court affirmed the dismissal of the criminal charges premised on violation of the computer-use policy. While there is currently a slit among the circuit courts concerning the proper interpretation of the CFAA, the trend has been in favor of the narrow interpretation endorsed by the Ninth Circuit in Nosal.
The reasoning in Nosal applies broadly to any attempt to criminalize work rules. Allowing prosecutors to decide when workplace misconduct is a crime exposes employees everywhere to arbitrary and discriminatory prosecution.
Equating a Work Rule Violation with a Scheme to Defraud Alters the Traditional Balance
The Supreme Court in Cleveland rejected the government’s interpretation of the mail fraud statute that equated the issuance of licenses or permits which deprivation of property because there was no “clear statement” from congress that the statute was meant to apply to licenses and permits. The courts was persuaded that the government’s sweeping interpretation “would subject to federal mail fraud prosecution a wide range of conduct traditionally regulated by state and local authorities.” Regulating workplace behavior is even more removed from the situation in Cleveland since this is a matter traditionally left to employers, not the state or federal government. Absent a “clear statement’ from Congress, there is no justification to disrupt the existing balance.
It is a debatable whether Congress can draft legislation that (1) makes it a crime for an employee to violate a work rules imposed by his employer and (2) passes constitutional muster. Unless and until it does so, enforcement of workplace rules must be left to employers.
The Morales Law Firm would like to thank The national Association of Criminal Defense Lawyers CHAMPION for sharing this article with us.