Judicial decisions.

Workplace violence. According to a Florida district court, employers may have to allow exceptions to otherwise stringent work rules to comply with the Americans with Disabilities Act (ADA). The court found that an employee fired for misconduct may have the right to contest that discharge because of a disability.

Joe Hindman was employed by GTE Data Services (GTEDS), Inc., when he was diagnosed with a chemical imbalance. Hindman planned to admit himself to a hospital to be treated for his condition. Before entering the hospital, however, Hindman was fired by GTEDS after he brought a firearm to work.

Hindman sued GTEDS under the ADA, which prohibits discrimination against an individual because of a disability. It also requires employers to make reasonable accommodations to the known physical or mental limitations of otherwise qualified employees. Hindman claimed that poor judgment, induced by the chemical imbalance, caused him to possess the firearm. He also alleged that GTEDS did not attempt to make accommodations for his disability.

Attorneys for GTEDS requested that a judge grant summary judgment at a hearing based on uncontested evidence, which would avoid a trial. The district court denied the motion for summary judgment and ordered that a jury decide whether GTEDS violated ADA provisions by terminating Hindman's employment.

According to attorney William Pilchak of Charfoos, Reiter, Peterson, Holmquiat & Pilchak, P.C., of Farmington Hills, Michigan, the decision has significant ramifications for employers. Pilchak, an expert on labor and employment law, contends that this case could establish that an employer has the obligation to relax enforcement of traditionally uniform work rules if job misconduct is caused by a mental disability.

In addition, the district court's refusal to grant summary judgment could be read as implying that the discharge of an employee for conduct caused by a mental disability could be discrimination under the ADA. When presented with this question again, courts might take a restricted view of whether the employee poses a direct threat in the workplace. (Joe P. Hindman v. GTE Data Services, Inc., U.S. District Court, M.D. Florida, No. 931046, 1994)

Cellular telephone fraud. According to the Ninth Circuit Court of Appeals, the production of devices designed to facilitate cellular telephone fraud is a federal offense because it violates a U.S. statute prohibiting counterfeit access devices. The decision overturns a lower court ruling that had interpreted the federal statute more narrowly.

Cellular phones place calls by transmitting a permanently assigned number or electronic serial number (ESN), an assigned phone number or mobile identification number (MIN), and the number being called to a nearby antenna. When local customers make a call, the local cellular network confirms that the ESN and the MIN match before the call is completed. To accommodate customers who are out of the service area, networks allow calls to be completed in "roaming mode." If the ESN is not found on a list of invalid numbers, the call is connected without a MIN and ESN match.

Kenneth Bailey modified cellular telephones so that calls could be made in roaming mode even though the call could not be billed. This scheme, known as "tumbling the ESN," involves altering the program in the telephone hardware, causing the phone to send out random ESNs. The user can then change the MIN to one in another area and force the phone to place calls in roaming mode.

Bailey manufactured microchips encoded with the program and placed them in cellular telephones. He then sold the chips and the phones. Bailey was arrested after selling five chips to an undercover Secret Service agent.

After his arrest, Bailey was tried in district court and the jury convicted him of manufacturing and trafficking in counterfeit access devices in violation of a U.S. statute. At the conclusion of the trial, Bailey's attorney asked the judge to overturn the jury's verdict. The judge did so, based on his interpretation of the statute. The judge ruled that the computer chips Bailey altered were not access devices within the meaning of the statute. Bailey was acquitted on the basis that his actions did not constitute trafficking and that the chip did not meet the definition of a counterfeit access device.

The judge ruled that the purpose of the statute is to prevent access to and defrauding of individual accounts. Because Bailey merely "piggybacked" on an existing system and did not cause calls to be billed to individuals, the case did not meet the requirements of the statute.

The government appealed the ruling. The case was then heard by the appeals court, which overruled the district judge's decision and reinstated the original conviction made by the jury, stating that the purpose of the statute is to address the abuse of new technologies that allow access to goods and services without immediate payment. Bailey's attorneys have filed a petition for a rehearing of the case.

According to Mariam Krinsky of the U.S. District Attorney's Office in Los Angeles, the case is significant for the prosecution of cellular telephone fraud. One problem demonstrated by this case, says Krinsky, is that criminal statutes do not always keep up with the technological abilities of modern criminals. The case broadens the definition of counterfeit access devices to include cellular telephone fraud, which may make prosecution of similar crimes easier. (The United States of America v. Kenneth Steven Bailey, United States Court of Appeals for the Ninth Circuit, No. 92-50721, 1994)