United States: South Carolina Court Of Appeals Weighs In On South Carolina's Political Opinions Statute, Approves Discharge Of Employee For Excessive Personal Use Of Company Phone And Laptop

In Owens v. Crabtree, Opinion No. 5616 (January 16, 2019), the South Carolina Court of Appeals held that a company's termination of an employee for using company devices, on company time, to oppose a local building project that the company had a financial stake in was valid and did not violate public policy. The holding (1) illustrates the benefits of a written company policy regarding the use (including personal use) of company devices/technology and (2) provides an example of a valid termination that did not violate South Carolina public policy.

Background

ADC is an engineering firm in Mount Pleasant, South Carolina, that has approximately 60 employees in its various engineering divisions. James Owens worked as a construction administrator in ADC's civil engineering division. Because his job duties required Owens to split time between the field and the office, ADC provided him with a company cell phone and laptop. ADC's company policy regarding personal use of company technology allowed "[b]rief or incidental use of office technology for personal, non-business purposes . . . as long as it [was] not excessive or inappropriate, and [did] not result in expense or loss to the company."

In 2011, a local real estate developer undertook the development of a parking garage near Shem Creek, which the appellate court aptly described as "a popular waterfront dining and recreation area known for its picturesque views and historic charm." Once the project was approved in 2013, the developer hired ADC as the project's structural engineer. Owens's division of ADC was not involved in the project.

Opposition to Shem Creek Project

Many local residents were not pleased with the commercial construction in Shem Creek. One such resident was Owens, who became an outspoken opponent of the Shem Creek project. In his opposition, Owens attended local council meetings, lobbied council members, started a petition to rescind the project, and even started a "Save Shem Creek" corporation. Owens claimed that he was unaware of ADC's involvement during his opposition efforts, but he also said he met with a partner at ADC in charge of the civil engineering division "out of courtesy" to inform him of his involvement.

In September 2014, the developer of the project learned that Owens was employed by ADC and, in turn, informed ADC that it would be terminated from the project unless ADC fired Owens. ADC elected not to fire Owens at that time—resulting in ADC's termination from the Shem Creek project. As part of the termination communication, the developer's attorneys sent a letter to ADC and Owens requiring preservation of evidence on Owens's ADC devices. At that time, Owens informed ADC partners that he may have used his work devices for matters associated with his opposition to the Shem Creek project, possibly during work hours.

Personal Use of Company Technology. The search of Owens's work devices revealed several emails sent during work hours regarding his opposition to the Shem Creek project (most sent to his personal email), documents about the project, and numerous texts and calls related to the project. Owens also recruited another ADC employee to help prepare a presentation for a town council meeting. After learning of these findings, ADC terminated Owens's employment because "it learned that he had used company time, equipment, materials, and employees to engage in 'an activity that ultimately harmed ADC.'"

South Carolina Political Opinions/Exercise of Political Rights Statute. Owens filed a wrongful termination lawsuit in October 2015 alleging ADC discharged him in violation of public policy, specifically as articulated in South Carolina Code Section 16-17-560, which makes it unlawful to discharge an employee "because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State." ADC moved for summary judgment, which the circuit court granted.

The South Carolina Court of Appeals' Opinion

ADC's Termination of Owens Was Lawful. On appeal, the South Carolina Court of Appeals concluded that Owens was not terminated for exercising his rights to free speech or use of the political process to oppose the project but rather "because he used company equipment, materials, and time to engage in an activity that was a violation of the company policy and unquestionably detrimental to ADC."

The court in Owens explained that in South Carolina, there is a "public policy exception to the at-will employment doctrine": "an at-will employee has a cause of action in tort for wrongful termination where there is a retaliatory termination of the at-will employee in violation of a clear mandate of public policy." The court also acknowledged that "it is not disputed that Owens's use of the political process to actively oppose the Shem Creek project was within his rights as a private citizen." Nonetheless, the court found, that was not the basis for the termination, as evidenced by ADC's decision not to fire Owens when originally given the ultimatum by the developer. In fact, the court noted that "ADC had no issue with Owens exercising his right to engage in speech opposing the Shem Creek project—or other projects that ADC was working on—as long as he did not do it during work hours or with work equipment." Owens was fired only after ADC learned he violated the company policy against excessive personal use of company technology. Therefore, the court concluded, the basis for the termination was valid and did not violate either South Carolina Code Section 16-17-560 or public policy.

Key Takeaways

Importance of a Written Policy on Work Devices/Technology and Personal Use. The decision shows the importance of having a written policy on company devices/technology and employees' personal use of them. The court relied on the company policy throughout the decision as part of its rationale for determining the termination was lawful. It is important to note that there are additional aspects to consider when drafting a policy regarding personal use of company devices/technology, including National Labor Relations Board rulings not applicable in this case. (See here and here (in The Practical NLRB Advisor, search for "Purple Communications").)

The South Carolina "political opinions/exercise of political rights" statute may allow a private cause of action when paired with the "discharge in violation of public policy" doctrine. South Carolina Code Section 16-17-560—which prohibits employment/occupation termination because of political opinions or the exercise of political rights and privileges—does not have an express private cause of action allowing a discharged employee to bring a claim under the statute. However, a discharged employee may be able to bring a private cause of action using a "discharge in violation of public policy" argument, based on an alleged violation of the statute. Employers may want to consider this possibility when terminating the employment of an employee.

And finally, in case you were curious, the parking garage opened in early 2017 and was the subject of additional litigation between the developer and the town.

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